Trump & Telegram (with Joyce Vance)
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Hey folks, Joyce Vance here. Another busy week of politically charged legal news making the headlines. Special Counsel Jack Smith re-indicted former President Donald Trump in the election interference case in D.C. following the Supreme Court's recent immunity decision. Smith also filed a brief urging the 11th Circuit Court of Appeals to reinstate the charges against Trump in the classified documents case.

which District Judge Cannon recently threw out. In other news, Telegram founder and CEO Pavel Durov facing criminal charges in France in a controversial case accusing him of allowing criminal activity on his messaging app. Preet Bharara and I discuss all that and more on a new episode of the Cafe Insider podcast.

If you're a member of Cafe Insider, head over to the Insider feed or click the link in the show notes of this podcast to listen to the full analysis. Stay tuned, listeners. Remain here for an excerpt from our discussion. To become a member of Cafe Insider, head to cafe.com slash insider. You can try the membership for just $1 for one month. That's cafe.com slash insider. Now, on to the show.

Okay, so the Trump-DC case, everyone remembers, just to bring everyone up to speed after a long summer. There's that case in the Supreme Court that held in a very sort of complicated fashion that Trump had access to an immunity argument based on acts that were official as opposed to unofficial, official as opposed to personal. And that sort of gummed up the works in the DC case. In a way, I think not fully expected, given the ruling and given the posture of the case,

Jack Smith and his team sort of preemptively, without waiting for a hearing or argument in front of the court in D.C. as to what allegations were proper and which allegations were not proper, given the Supreme Court ruling, it preemptively superseded the indictment and removed various allegations and claims and paragraphs from the indictment.

Do you want to summarize what those were and why that happened? Yeah, so I view this as Jack Smith's opening bid, right? He and his team have read the Supreme Court's immunity decision, and they superseded the indictment to give themselves the most expansive possible reading. So, for instance, allegations about Trump's interactions with DOJ, those are out. It was very clear that— All gone. All gone, right? All gone. Supreme Court said no, and they listened. They did not fight.

They reframed the indictment, shifting away from any mention of President Trump and squarely making it about candidate Trump. That's personal conduct. That's not really a change because I recall that you in particular, very eloquently multiple times over the last number of months, had made the point that what we're talking about here, when you're trying to parse out the difference between official conduct and unofficial conduct, presidential conduct and non-presidential conduct,

that Trump was acting in a lot of these instances as a candidate. They just made that more explicit here. Should they have done that?

No, I think the way they indicted this case originally was OK. No one could have foreseen that the Supreme Court would have this incredibly expansive reading of presidential immunity. And quite frankly, you know, I think you can you could have made the argument before the Supreme Court ruled that it was candidate Trump who was having conversations with folks at DOJ.

But the opinion forecloses that option. And so the special counsel, I think, did the right thing and tossed that out where he's willing to fight, though. The real fighting issue in this indictment is the allegations involving Trump's interactions with Mike Pence.

And they have reframed this as not a president talking with his vice president, but as a candidate encouraging his co-candidate, who is acting in his capacity as the president of the Senate, to hold up certification of the election. We will see Trump push back strenuously on those allegations.

And, you know, just sort of a technical legal point here. When Judge Chutkan rules, one would hope that she would rule in the alternative, that if she buys Jack Smith's arguments, she would rule that this is not official conduct, the interaction with Pence, but that if it is official conduct, then...

It is within that category of official conduct that is presumed but not definitively immune and that Smith has overcome the presumption by showing that permitting him to use this in his indictment will not inhibit the functions of the presidency. So there's that issue to look for. Then there's conduct that Smith puts in as what he would characterize as clearly not official, clearly conduct committed by a candidate, interactions,

For instance, with state officials, the phone call to Georgia, the fake electors. So he has done his best to reframe this. He kept all four of his original charges in. The charges don't change. That we should emphasize. The charges are exactly the same. The counts are the same. Trump's exposure is the same. The bottom line is the same.

It's just that the allegations in support of those counts are a little bit different in the way you've described. Right. I mean, the evidence that's available to Smith is limited. The loss of that evidence about DOJ, I think, is really pretty tragic. It's good evidence and strong evidence, but Smith understands reality here. There are a couple other examples just for color so people get it.

The indictment continues to make reference to Trump's statements at the Ellipse rally. You remember that rally on the afternoon of January 6th? In the old indictment, the allegation read on January 6th, the defendant publicly repeated the knowingly false claim that 36,000 non-citizens had voted in Arizona. In the new indictment, the allegation now reads, quote, in his campaign speech on January 6th, the defendant publicly repeated the knowingly false claim that 36,000 non-citizens had voted in Arizona, end quote.

Do you think part of the gambit here is to get on the front foot and show good faith to the judge? Or could they have waited and it wouldn't have made a difference? You know, it was an interesting strategy. I did not expect that they would supersede until she heard where they wanted to start. But I don't dislike it. As you say, it puts them on the front foot. They've displayed good faith. They know that while they're arguing to Judge Chutkin now, ultimately they are making these arguments to the Supreme Court.

And I would expect every strategic decision that they make, that every single one of them will be tailored to presenting this case to the Supreme Court so that when they move forward to trial, it's with as many of their charges intact as possible and as much of their evidence available to them as they can preserve. Yeah, I like the move because here's how it would have played out and will still play out, you know, in part this way.

They would have a discussion in a brief or in an argument saying, you know, we think that we obviously need to remove the allegations relating to conversations with the Justice Department. We would like to do this other thing. The former president's team would say, we think this is okay, that's okay. And it would all be in the hypothetical. And they'd be arguing about words that were not yet written. Here, they provided a draft. You know, it's actually, you know, an operative indictment. So it's more than a draft, obviously. But there's a text that now exists saying,

And they can argue about a particular text as opposed to a hypothetical text. And I think that moves it along. Although, you know, the other bottom line question that we should address, and it's unchanged, is that none of this is happening before the election. None of this is happening in this calendar year either. By none of this, I don't mean arguments about what can and cannot be in the indictment, but there's no trial happening. So, you know, I guess it streamlines things and it can hasten things, but that only is true

If Trump loses the election. Right. I mean, this is a gambit based on Trump losing the election. If he wins, it's all for naught. So I think we're seeing them, you know, posture not to go fast, but to go far, as we used to say in my office. You know, they are in this for the long haul. They want to win the case. Right.

Something else, another strategic advantage that they gained by going ahead and superseding is they wipe out at least part of an argument that Trump would make. If they were only talking about striking allegations from the indictment, then Trump would have argued that the original indictment was tainted because the grand jury heard evidence it wasn't entitled to. Now, look, I'm not sure that that argument would have been a winner in this case, but they have removed it.

But we will still hear Trump make it, by the way. He'll say that some of the evidence that they've included, even in the superseded version, was improperly before the grand jury. But by going to an entirely new grand jury that didn't hear the original case and seeking the superseding indictment, Smith sort of cuts some of the legs out from underneath that argument. Yeah, there are other interesting edits to the indictment. I guess in an abundance of caution, the indictment removed mention of a January 5th, 2021 tweet

where Trump told supporters heading to Washington for what ended up being this violent riot, quote, we hear you and love you from the Oval Office, end quote. Taking it, I guess, arguably out of the realm of a campaign comment or speech into official conduct. I don't know that it really does, but the mention of Oval Office is, I guess, significant in the eyes and in the mind of the Jack Smith team, which also gives you a little bit of a roadmap for future presidents,

to cloak misconduct and illegal behavior in the language of the White House and in the language of the Oval Office. And if you bring some of those conversations into the ambit of the Justice Department or advisors to you in the White House, you can perhaps sufficiently taint or depending on your perspective, untaint the conduct

in light of the Supreme Court opinion. Fair? Yeah, I mean, something that this superseding indictment really lays bare is just how flawed the Supreme Court's decision is. It's a roadmap for criminal conduct, right? I guess if you're a president, you can now commit a bank robbery as long as your co-conspirators are at DOJ. I mean, there's obviously the SEAL Team 6 analogy or hypo, but it really is a roadmap for a clown car full of criminals to do whatever they want. And in that sense...

I think it's problematic to the point that you're making and that one tweet is not the only thing that they excise from this indictment. Any comments that Trump makes from behind the podium in the White House, right? Anything that has that veneer of official conduct, right?

they've removed, I think, so that they can argue down the road, look, we acted in good faith. We probably could have kept this stuff in the indictment. We could have argued that it was campaign related, but we didn't. We were trying to respect your opinion. And maybe that will carry some weight with the Supreme Court. You know, who knows? This Supreme Court could view these issues entirely differently depending on the outcome of the election. So I want to just go back to what you said earlier.

a few minutes ago, which I think is dead on and where the battle line is drawn. So Jack Smith's team was cautious in light of the Supreme Court opinion, removed a lot of things. The indictment, I think, has gone from 45 pages to 36 pages. Entire paragraphs and pages are gone, but they kept in allegations relating to Mike Pence. At the end of the day, that must be because they thought that was really, really vital for the jury to hear. But

Do you have confidence that that's going to remain in? The comment that I made a minute ago, I think, is where I land on this as much as it pains me. I think that the court may have different views on these arguments depending on who wins the election. And if Trump loses, who knows? Then perhaps they're willing to give Smith a little bit more room to roam. The reality is...

I think he needs the Pence allegations, or at least to be able to tell the jury that story for these charges to make sense and for these charges to stick. And so he will be willing to fight that one, whether it's to argue that this is unofficial conduct or

or that it's the type of official conduct which is only presumptively immune and that he can overcome that immunity. And he has a good argument to make there, right? He can argue that this does not impair any of the functioning of the presidency. A president who's telling his vice president that when he's acting as the president of the Senate, he should refuse to do something that he's obligated to do, a ministerial duty to confirm the vote count,

It doesn't really have anything to do with the functioning of the presidency. And so I think that there's this notion in the superseding indictment that sort of explains this perfectly. And the indictment says this. It says,

And then it goes on to say about January 6th that Trump had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election. That's new. That's different from the original indictment.

And I think that goes to how central these allegations about Trump interfering and trying to use Pence to interfere are. You know, Preet, we may have discussed this before. One way that I've always viewed this indictment is that it's about Trump as the ringleader of a conspiracy. The other co-conspirators aren't charged, but it's about Trump as the ringleader of a conspiracy.

But Mike Pence is the one guy who pushed back. Pence refused to join the conspiracy. And telling that story to the jury is central to helping them understand the criminal conduct here. I think it's absolutely correct. I think there is a real argument that will be substantial and substantive with respect to the retention of these allegations given the Supreme Court decision. And there was not as much guidance yesterday.

as you might have wanted other than the definitive ruling with respect to the doj stuff so i guess we'll see i hope you found our discussion informative to listen to the full episode head over to cafe.com insider and become a member you'll be supporting our work and get exclusive access to full weekly podcast episodes of insider and bonus material from stay tuned with pre head to cafe.com insider

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