Special Counsel Jack Smith is taking a risk by pursuing his Jan. 6-related case against President Donald Trump, according to a legal analyst.
The warning comes as Smith demands Trump’s communications with former Vice President Mike Pence.
Smith was forced to modify his Jan. 6 indictment after the Supreme Court ruled in July that presidents have broad immunity for their “official acts.”
In a stunning move that was widely seen as legally improper, Smith released a trove of “evidence” against Trump to the public last week.
The claimed official purpose of his filing was to convince Obama-appointed Judge Tanya Chutkan that the charges against Trump could stand as “private acts” after the Supreme Court’s immunity ruling.
However, many see Smith as trying to interfere in the presidential election.
While Smith removed some charges against Trump, he preserved many of the original allegations.
Instead, he has now characterized the same allegations as “private acts” of a presidential candidate.
Smith’s efforts to retain some of the allegations against Trump have raised eyebrows.
In particular, Smith has alleged that Trump’s communications with his vice president constituted “private acts.”
The Pence allegations cut to the core of Smith’s conspiracy narrative: that Trump pressured Pence to overturn the 2020 election results.
However, some legal analysts are skeptical that Smith’s argument will fly.
Stephen Gillers, a law professor at New York University, said he is skeptical that Judge Chutkan, and higher courts, will agree with Smith.
Gillers notes that Trump’s conversations with his vice president could only be viewed as official conduct rather than private.
“Communications with Pence will be the hardest challenge for Smith, who has to persuade Chutkan and then higher courts that the conversations between the president and his running mate in this period are personal,” Gillers said.
Trump’s best chance of exoneration, however, likely depends not on the caprices of Judge Chutkan but on the will of American voters.
Chutkan has been overwhelmingly favorable to Smith.
It appears quite possible that the judge would retain the Pence allegations, however legally groundless they may appear to outside observers.
It was Chutkan who allowed Smith to release 165 pages of evidence against Trump just weeks before the presidential election, in what has been widely criticized as a breach of legal norms.
Smith’s filing has widely been condemned – not just by Trump, but by legal analysts across the political aisle.
Many note that it is an improper attempt to litigate the case in the court of public opinion and damage Trump’s hopes of winning re-election, with a jury trial in doubt.
Smith is well aware that if Trump wins the election, he could dismiss the case and drop the hammer on the Democrat prosecutor.
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