The Supreme Court’s ruling that former presidents enjoy broad immunity protections from criminal prosecution took the wind out of special counsel Jack Smith’s case against former President Donald Trump. Since the highest court announced its ruling, Smith and other prosecutors have strategized how to move forward in the new legal environment.
Smith’s Strategic Crossroads
Smith is at a crossroads at more than one juncture regarding Trump’s case. His particular area of concern was Trump’s actions on January 6, 2021, during a riot at the U.S. Capitol.
Shift in Deadlines
Last week, Smith asked for longer deadlines on the case, representing a significant shift for Smith, who had consistently sought to move the case forward to be tried before the November election.
Options for Narrowing or Broadening the Case
The immunity ruling put Trump’s actions on January 6 within the scope of potential, and even likely, Presidential immunity.
Smith must either narrow the scope of his prosecution to actions that Constitutional protection would not cover, seek an evidentiary hearing to expose the evidence against Trump to the public, or at least to the court, or he may choose to broaden his indictment to target not only the former President but other actors that day that the Constitutional immunity clause may not protect.
McQuade’s Perspective on Smith’s Strategy
Former U.S. Attorney Barbara McQuade suggested that Smith might “choose the path of least resistance,” which is what she expected most prosecutors to do to resolve cases rather than allow them to become entrenched.
Involving Co-Conspirators
However, McQuade noted that Smith seems to be looking to involve the co-conspirators in the charges rather than significantly narrow his prosecution.
Potential Co-Conspirators Named
She said, “Initially, Jack Smith did not name them, I am guessing because he was hoping to streamline the case against Trump and get it done quickly because it was Trump who’s the threat to democracy.”
Names of Potential Co-Conspirators
McQuade named the potential co-conspirators as Rudy Giuliani, John Eastman, Jeff Clark, Sidney Powell, Kenneth Chesebro, and Boris Epshteyn.
McQuade’s Take on Charging Other Defendants
McQuaid asserted, “Because there will be no trial [before the election], maybe he’s decided, ‘You know what, the time’s come, I’m just going to charge the other defendants.'”
Evidence Permissibility and Legal Standards
Another significant legal issue in Smith’s case is the permissibility of evidence that conforms to the Supreme Court standard handed down in the immunity decision.
Official Acts Cannot Be Used as Evidence of Private Crimes
According to the court, evidence is inadmissible if it uses official acts to support charges not covered by presidential immunity. For example, prosecutors cannot rely on official acts as evidence to prove a charge regarding a private act.
Challenges with Legal Standards
This is also not a simple distinction for Smith and other prosecutors. McQuade highlighted that the prosecutors must find evidence that will pass the legal standard at both the district court level and withstand Supreme Court scrutiny upon potential appeal.
McQuade Explains the Dilemma
She said, “My guess is that’s the part that they’re struggling with.” McQuade explained, “What you don’t want to do as a prosecutor is win the battle and lose the war.”
“So you put up this great case, and you get all this evidence in, and there’s a conviction, and then ultimately it gets overturned because the high court says, ‘Oh, you know that one piece of evidence that you used about that statement Trump made? That was an official act.'”
Potential for a Minitrial
A final option for Smith is to push for a minitrial to lay bare all the evidence for the court and public to see.
Despite the fact that no decision will be made in the case prior to the election and likely even the inauguration, Trump’s opponents would like to see all evidence presented against him by prosecutors as the next best thing to a conviction. This could potentially be accomplished before the election.
