By Andrew Goudsward
Former U.S. President Donald Trump gestures on the day of a court hearing on charges of falsifying business records to cover up a hush money payment to a porn star before the 2016 election, in New York State Supreme Court in the Manhattan borough of New York City, U.S., February 15, 2024. REUTERS/Andrew Kelly/File Photo
WASHINGTON, Sept 4 (Reuters) - U.S. prosecutors pressing their case against Donald Trump over his efforts to undo his 2020 election loss are also proceeding with caution to avoid taking legal positions that could tie the hands of President Joe Biden or his successors.
The U.S. Justice Department has historically carefully safeguarded the rights of the executive, and indeed three times during Biden's Democratic administration defended his Republican predecessor in civil lawsuits related to his conduct in office.
But in pursuing a criminal case against Mr Trump, the department is signaling that there are limits to its normally broad view of the presidential role.
A superseding indictment secured last week by Special Counsel Jack Smith, who is leading the prosecution, seeks to get around a U.S. Supreme Court ruling that former presidents are largely immune from criminal prosecution for actions that are part of their official duties by contending that Trump was principally acting as a candidate, not a president, when he sought to cling to power.
Trump has pleaded not guilty to four counts that accuse him of a multi-part conspiracy to block the collection and certification of the election results. He has believed that this case, coupled with other charges filed against him, had the political motivation of blocking his path to returning to power.
The ruling in July by the 6-3 conservative majority court, bolstered by three Trump appointees, forces the Justice Department to wrestle with questions of presidential power extending beyond Trump's case, legal experts said.
"There's potentially a conflict between, on the one hand, the things the government might need to say in order to sustain the indictment and, on the other hand, what it needs to say in other cases and contexts to defend some pretty standard Department of Justice 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, an attorney in Smith's office, told the Supreme Court in April that the department has usually taken a "very broad view" of "official presidential action."
A Justice Department spokesperson did not respond to a request for comment.
DEFEND.
First, it said it would represent Trump in a defamation lawsuit filed by the writer E. Jean Carroll on the grounds that Trump had been acting in his official capacity when he maligned Carroll in denying her claim that he sexually assaulted her. It later backtracked. Two juries went on to order Trump to pay Carroll more than $88 million.
Even as the department investigated Trump, it trod carefully last year when asked to weigh in on Trump's claim of civil immunity from lawsuits over his role in the Jan. 6, 2021, attack on the U.S. Capitol by his supporters.
It urged a federal appeals court to deny immunity, but noted in a filing that "in all contexts, questions of presidential immunity must be approached with the greatest sensitivity to the unremitting demands of the presidency."
The Supreme Court largely based its standard for criminal immunity off a longstanding prior decision that presidents cannot face civil lawsuits over conduct within the limits of their formal responsibilities.
In the election subversion case, the court left it to U.S. District Judge Tanya Chutkan to decide which of the actions Trump took are shielded by immunity and which may go to trial. Prosecutors would have to prove either that Trump's actions were not linked to his official duties or that the prosecution does not interfere with presidential authority.
Whatever Chutkan decides is likely to be appealed back to the Supreme Court, leaving virtually no chance that a trial take will place before the Nov. 5 election, when Trump faces Democratic Vice President Kamala Harris.
The revised indictment focused more on the role of Trump's private attorneys and campaign officials, deleting references to administration officials. It described Trump's address to supporters ahead of the Capitol siege as a campaign speech.
It put a spotlight on the dual roles that then-Vice President Mike Pence had played as Trump's running mate in 2020, and as president of the U.S. Senate when he presided over the Jan. 6 congressional certification of the election. Trump had futilely leaned on Pence to block certification of the vote.
The department also declined in 2021 to shield Mo Brooks, a Republican U.S. representative who had spoken at the Jan. 6 rally, from a lawsuit over the riot. It decided Brooks was acting in a campaign capacity unrelated to his official function.
But Norm Eisen, a veteran Washington lawyer who served as special counsel in the first impeachment of Trump, said the Trump case presents a "unique set of circumstances" that makes it less likely that future presidents will be hampered by the prosecution. No president other than Trump has attempted a similar effort to undermine election results, he said.
"The conduct here is so rare in American history," Eisen said.
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Reporting by Andrew Goudsward; Editing by Scott Malone and Deepa Babington