The election trial against Donald Trump is changing the US Department of Justice's usual attitude towards presidential power

The U.S. Department of Justice has a history of carefully protecting executive powers and, in fact, during Biden's Democratic term in office, defended his Republican predecessor three times in civil lawsuits related to his conduct in office.

But as the department pursues criminal proceedings against Trump, it is signaling that its normally generous view of the president's role has its limits.

A revised indictment obtained last week by special counsel Jack Smith seeks to overcome a U.S. Supreme Court ruling that largely protects former presidents from criminal prosecution for acts that are part of their official duties. The prosecution argues that Trump acted primarily as a candidate, not as president, in his attempt to stay in power.

Trump has previously pleaded not guilty to four counts accusing him of a multi-partisan conspiracy to prevent the collection and certification of the election results. He argues that this and other cases he faces are politically motivated attempts to prevent his return to power.

The ruling by the court, with a 6-3 conservative majority that includes three Trump-appointed justices, forces the Justice Department to grapple with questions about presidential power that have implications beyond Trump's case, according to legal experts. “There is a potential conflict between the things the government may have to say to sustain the prosecution and what it may have to say in other cases and contexts to defend some pretty standard Justice Department and executive branch positions,” said Peter Keisler, the former head of the Justice Department's civil division, which defends presidential actions against legal challenges. Michael Dreeben, a lawyer in Smith's office, acknowledged to the Supreme Court in April that the department typically takes a “very broad view” of “official presidential actions.”

A Justice Department spokesman declined to comment.

TRUMP DEFENDS

During the Biden administration, the department defended Trump in lawsuits over the firing of FBI agents who exchanged critical text messages about him and the violent eviction of protesters outside the White House in 2020.

The department had initially said it would defend Trump in a defamation suit brought by writer E. Jean Carroll, finding that Trump acted in his official capacity when he denigrated Carroll while simultaneously denying her accusation that he sexually assaulted her.

The case later changed course. Two juries sentenced Trump to pay Carroll more than $88 million.

Even as the department investigated Trump last year, it treaded cautiously when asked to comment on Trump's claim for civil immunity from lawsuits related to his role in his supporters' attack on the U.S. Capitol on January 6, 2021.

The government asked a federal appeals court to deny immunity, but noted in a brief that “questions of presidential immunity must be addressed in any context with the utmost sensitivity and in light of the relentless demands of the office of the presidency.”

The Supreme Court based its standard for criminal immunity largely on a long-standing earlier ruling that presidents cannot face civil suits for conduct within the scope of their formal powers.

In the election tampering case, the court left it up to U.S. District Judge Tanya Chutkan to decide which acts qualify for Trump's immunity and which can be tried in court. Prosecutors must prove either that Trump's conduct was not related to his official duties or that the prosecution does not violate the president's authority.

Whatever Chutkan's decision, it will likely be referred to the Supreme Court, meaning there is virtually no chance of a trial before the November 5 election, in which Trump faces Democratic Vice President Kamala Harris.

The revised indictment emphasized the role of Trump's personal lawyers and campaign staff and deleted references to government officials. Trump's address to his supporters before the siege of the Capitol was described as a campaign speech.

It highlighted then-Vice President Mike Pence's alternating roles as Trump's running mate in 2020 and as president of the U.S. Senate as he oversaw Congress's certification of the election on Jan. 6. Trump unsuccessfully pressured Pence to prevent the election from being certified.

The department also declined in 2021 to protect Mo Brooks, a Republican U.S. representative who spoke at the Jan. 6 rally, from being sued over the riots. It concluded that Brooks was participating in campaign activities unrelated to his official role.

Norm Eisen, a veteran Washington lawyer who served as special counsel in Trump's first impeachment trial, said the Trump case represents a “unique constellation” that makes it less likely that future presidents will be hampered by the impeachment. No president other than Trump has made a similar attempt to manipulate election results, he said.

“Such behavior is so rare in American history,” Eisen said.