Trump's new indictment shakes his refocused campaign against Kamala Harris

CNN
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Special Counsel Jack Smith has defiantly raised the question of Donald Trump's attempt to steal the 2020 election as the final stages of this year's race for the White House heat up.

By attempting to salvage his case after his original charges were overturned by the Supreme Court's immunity ruling, Smith signaled that he is determined to bring the former president to justice – even if there will be no trial before Election Day.

“I think what Jack Smith is basically saying is, 'I'm still in control of this,'” said former FBI Deputy Director Andrew McCabe, a CNN legal and security commentator, after the special counsel filed a modified indictment on Tuesday that was approved by a new grand jury.

His move underscores the enormous personal commitment Trump has made to November's presidential election: Not only would he return to the nation's highest office, but he would also be given the authority to stop this and another federal case against him and, if convicted, avoid any penalties that could include prison time.

“This is a very big year, it's a very important election,” former federal prosecutor Ankush Khardori told CNN's Alex Marquardt on Tuesday. “This case is at stake in the election because if Trump wins, he's lost. If Trump loses to Harris, this case will come to a conclusion.”

The conservative majority's decision earlier this summer that Trump could enjoy immunity from prosecution for some of his actions as president was one of the most momentous moments in Supreme Court history and has massive implications for the U.S. system of government. Many mainstream scholars criticized the decision as contrary to the spirit of the country's founders because it seemed to give the president significant, unchecked powers.

The decision also sent shockwaves through an already turbulent presidential campaign, as it seemed to offer an ex-president who already believed himself to be all-powerful the opportunity to pursue strong-arm rule if he won the election in November. Democratic candidate Kamala Harris criticized the decision in her speech at the party's convention last week: “Think of the power he will have… Imagine Donald Trump without guardrails and how he would use the immense powers of the presidency of the United States.”

Smith's move also has other profound political, legal and constitutional implications at a critical national moment – 10 weeks before an election that could fundamentally reshape the country and once again test its institutions.

The facts and evidence in Smith's case have not changed. The prosecution continues to accuse Trump of conspiring to defraud the state's vote-counting system and corrupt and obstruct the process of certifying Joe Biden's victory. It also accuses him of plotting against the fundamental right of citizens to cast their ballots and have them counted.

But out of respect for the Supreme Court's ruling, Smith omitted language alleging that Trump used the Justice Department to bolster his claims of election fraud. And he sought to portray much of the remaining alleged conduct as that of a “candidate” rather than that of a president in his official capacity, avoiding the central theme of the court's ruling.

But his case still faces major obstacles. District Court Chief Judge Tanya Chutkan must now interpret the Supreme Court's ruling to decide what evidence is still admissible. And the ex-president's legal team will fight Smith every step of the way, pursuing every available appeal. Trump's legal and campaign teams could accuse him of violating Justice Department customs to avoid prosecuting major political figures so close to an election. Of course, part of the reason the original version of the case didn't go to trial long before the election was because of Trump's legal team's successful delaying tactics.

“If Donald Trump doesn't like how late this is happening, he shouldn't have delayed and postponed it for many, many months,” said Democratic Rep. Jamie Raskin of Maryland, who served on the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol, on CNN's “The Situation Room.” “Jack Smith is playing the cards that were dealt to him by Donald Trump and Trump's supporters at Roberts Court, who made sure this thing moved as slowly as possible. And I think there's something quietly heroic about Jack Smith's insistence on continuing to make sure this plot comes to light.”

Despite all its success in delaying the original Jan. 6 federal trial, the former president's camp was unable to prevent Trump's conviction in a hush-money case related to the 2016 election and a massive fraud verdict against him, his company and his adult sons in New York. Trump was also found guilty in another defamation case involving allegations of sexual assault by writer E. Jean Carroll. But a Trump-appointed judge in Florida recently dismissed Smith's lawsuit against Trump over classified documents (the special counsel is appealing). And another election-rigging case in Georgia has been plagued by numerous delays. The former president has pleaded not guilty to all counts.

The political significance of Smith's renewed attempt to force Trump to face unusual responsibility for his actions adds another dimension to the former president's renewed confrontation with Democratic surrogate candidate Harris.

The revised indictment will bring the issue of Trump's alleged criminality and autocratic ambitions back into the minds of voters after Trump's mountain of legal troubles as a driving force in the campaign was forgotten in the furore over Biden's disastrous debate performance, his subsequent withdrawal from the race and Harris's tumultuous start to her own campaign. While there is no chance the case will go to trial before the election, any attempt by Smith to hold evidentiary hearings in the coming weeks could unleash a new wave of coverage of Trump's alleged criminality as early in-person and mail-in voting begins.

For most candidates, being charged again in the middle of a presidential campaign would be a disqualifying embarrassment. But Trump has used his criminal problems to revive his campaign before — particularly during the Republican primaries. His new indictment came almost exactly a year after he showed up for booking at an Atlanta jail and submitted to a mugshot that turned his campaign into a defiant symbol.

Trump has struggled in recent weeks to gain traction for his campaign against a new Democratic candidate. And the ex-president's legal troubles have not been a central theme of the campaign in recent months. But no sooner had the new charges been filed against Smith than his team's muscle memory returned as he revived the core narrative of his bid for a second term – a false claim that he was the victim of election interference by a Justice Department weaponized by Biden. The ex-president accused Smith of trying to revive a “dead” witch hunt in Washington, DC, in an act of desperation. He also claimed the new charges were a new attempt at election interference to distract from the “disasters Kamala Harris has inflicted on our nation.”

It didn’t take long before a new appeal for donations based on the case landed in email inboxes.

With Trump's legal quagmire back in the spotlight, Harris faces new challenges. In the early weeks of her White House bid, she has focused on the problems facing Americans due to high food prices to mitigate a political weakness and is trying to portray herself as a generational change candidate compared to Trump.

The vice president has not framed her campaign as openly as Biden in a battle for the soul of the nation, but last week she invoked Trump's legal nightmares to portray him as an “unserious man” whose return to the Oval Office would bring “extremely serious” consequences.

Many Harris supporters like the contrast between the vice president, a former prosecutor, and Trump, a convicted felon and indicted suspect – a dynamic that is sure to play out on the debate stage on September 10.

The latest indictment of Trump also reinforces Harris's thesis that Americans have a “precious, fleeting opportunity” to put the bitterness, cynicism and chaos of the Trump years behind them and look to a more optimistic future. Still, her campaign team must be concerned that some moderate swing voters might see another indictment of the former president as over the top.

Aside from the immediate political and electoral implications of the new charges, Smith's latest filing was a reminder of the surreal reality of a former and possibly future president being impeached for attempting to ignore the will of the voters and cling to power after losing the election.

Biden's withdrawal from the campaign and the pomp of the party conventions have pushed Trump's threat to democracy into the background in recent weeks. But the question of how a president who sought to overthrow American democracy could evade his responsibilities and yet run for the White House again – and possibly win it – is sure to preoccupy future historians.