Special Counsel Jack Smith finds himself at more than one prosecutorial crossroads as he weighs how to move forward in former President Trump’s Jan. 6 case following the Supreme Court’s immunity ruling.
Smith last week asked for an extension of deadlines in the case until the end of August, a change for a prosecutor who previously pushed for a timeline that would bring the case to trial before the election.
The Supreme Court’s immunity ruling earlier this summer was harsh on Smith in mandating that former presidents like Trump maintain broad protections from criminal prosecution for actions they took while in office.
That leaves Smith at a juncture where he can choose to narrow his case, push for a hearing that reviews much of the evidence against Trump, or even expand the prosecution by charging Trump’s co-conspirators.
Barbara McQuade, a former U.S. attorney, said prosecutors often “choose the path of least resistance” in the interest of moving the case forward.
But with Trump’s team aggressively fighting the charges and thwarting Smith’s plans for a pre-election trial, he may be reconsidering that approach, including the six co-conspirators who have not been indicted alongside Trump.
“Initially, Jack Smith didn’t name them, I suppose, because he was hoping to expedite the case against Trump and get it done quickly, because it was Trump who posed the threat to democracy,” McQuade said, noting that the group includes campaigns and legal consultants Rudy Giuliani, John Eastman, Jeff Clark, Sidney Powell, Kenneth Chesebro and Boris Epshteyn.
“But in light of the fact that there will be no judgment [before the election]Maybe he decided, ‘You know what, the time has come, I’m just going to charge the other defendants.’”
Smith acknowledged the ruling in asking for the delay granted by Judge Tanya Chutkan, saying his team “continues to evaluate the new precedent set last month in the Supreme Court ruling.”
It’s a process they noted requires consultation with other parts of the Justice Department. Joyce Vance, a former U.S. attorney, argued that it’s not worth rushing this work to Smith.
“You could go fast alone or far together,” she wrote on social platform X.
“The opportunity to have some of the smartest lawyers in the country push back against rulings, present counterarguments and test conclusions means the Special Counsel will come out the other side with much stronger positions.”
Prosecutors have a lot to take away from the court’s 43-page ruling.
The Supreme Court ruled that former presidents are immune from prosecution for acts they perform in office that form part of their essential executive functions, and that they are presumptively immune from all other official acts. It’s a dynamic that has precluded any charges related to Trump’s pressure campaign on the Justice Department and also called into question whether his conversations with then-Vice President Mike Pence were also off the table.
But another aspect that Smith’s team must consider is an aspect of the decision that also limits the use of evidence related to official acts to support other accusations.
“They need to make a series of decisions. They have to decide what evidence they will potentially leave within the ambit of the immunity ruling,” said Kimberly Wehle, a former federal prosecutor turned constitutional law professor at the University of Baltimore.
“Each of the four counts [brought against Trump] will have its own elements that they will have to prove beyond a reasonable doubt, and they will have to evaluate whether the evidence that is now off the table somehow collapses any of these accusations so that they cannot proceed,” she said.
“So they’re going to have to say, ‘OK, let’s take things off the table that we’re not allowed to use for sure in accordance with the court ruling.’ And then there’s the maneuvering room thing, there’s the thing in the middle. ‘What is absolutely crucial that we need to have to move forward?’”
McQuade also emphasized that prosecutors will have to be strategic, evaluating both what will survive at the district court level before Chutkan, and at the Supreme Court, where the case is likely to return, given Trump’s resources.
“My guess is that’s the part they’re really struggling with,” she said of the ruling’s observations about what might serve as evidence.
“What you don’t want to do as a prosecutor is win the battle and lose the war. So you present this big case, and you get all this evidence, and there’s a conviction, and then ultimately it all gets overturned because the [Supreme] The court says, ‘Oh, you know that evidence you used about the statement Trump made? This was an official act.”
These complications could also lead Smith’s team to try to narrow its case rather than expand it, perhaps by dropping some of the charges against Trump, particularly any that relied heavily on the former president’s plans to replace his Justice Department leadership with those willing to investigate his baseless allegations. of electoral fraud.
And some eager to see Trump tried for his role on January 6 have also pushed for a so-called mini-trial to review all the evidence prosecutors have gathered about Trump. While live witness testimony could bolster any decision by Chutkan about what evidence and charges might be allowed in the case, the issue could also be addressed with legal documents.
The choice to indict the co-conspirators would also take longer, requiring prosecutors to re-present the case to the grand jury before bringing new charges.
There could be some benefit for prosecutors on that front.
“Since they’re not immune from lawsuits, maybe these trials could be quicker,” McQuade said, “and then you could turn them around and get them to cooperate.”
Whatever Smith’s plans are, they likely won’t become clear until Aug. 30, the date Chutkan agreed to extend deadlines on the case. A status conference is scheduled for September 5th.
While Supreme Court Justice Neil Gorsuch said during arguments that the court would aim to write “a forever rule,” prosecutors will also reflect on how their arguments and future legal entanglements with Trump might be evaluated in the future.
“They’re not just in it to win. When you’re at the Department of Justice, the goal really is to get it right. And now they have to really look at what the Supreme Court said and do their best to conform to that,” McQuade said.
Wehle said the fact that the opinion does not make clear that presidential conduct is purely private — and therefore prosecutable — adds another layer of unknowns that the Justice Department must consider.
“The fact that there’s nothing unofficial, I mean, it’s really concerning to me because it leaves the court with a lot of discretion in another case,” Wehle said.
It’s something that gives them flexibility, she said, to determine what “the Constitution means in the next case that comes their way regarding the scope of the president’s power to commit crimes.”
In contrast to steps taken in the past to speed up the hearing of the case, Smith did not pressure the Supreme Court to speed up the 32-day deadline during which the case would be returned to the lower courts.
“Someone might say, ‘They’ve had this for 39 days. Come on, work hard. But I think when you have to coordinate with all these different agencies, especially looking at each piece of evidence, not just the allegations but the evidence to prove them, additional work may be necessary,” McQuade said.
“So it seems like a bigger task to me than it probably appears.”
This story originally appeared on thehill.com read the full story
