Chief prosecutor Jack Smith will have a difficult talk convincing a judge that Donald Trump‘s communication with Mike Pence was private, a legal analyst has told Newsweek.
Stephen Gillers, a law professor at New York University, was reacting to prosecutors’ release of evidence in Trump’s election-fraud case. It is vital for Smith to present the Republican‘s actions as private after the Supreme Court ruled on July 1 that Trump has broad immunity from prosecution for presidential acts.
Trump was indicted in Washington, D.C., on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. The Republican presidential nominee has pleaded not guilty and has said the case is part of a political witch hunt. Newsweek sought email comment from Trump’s attorney on Tuesday.
Gillers told Newsweek that Smith makes a convincing argument that some of Trump’s conversations with people were private, and therefore are not protected by presidential immunity.
“Smith persuasively argues, because Trump was not acting in an official capacity but as a candidate, he had no official role,” Gillers said.
Donald Trump speaks during a rally at Dodge County Airport on October 6, 2024 in Juneau, Wisconsin. Prosecutors are hoping to show that the former president’s communications with ex-Vice President Mike Pence are not covered by presidential immunity.
Scott Olson/Getty Images
However, Gillers said that Smith has retained much of Trump’s communications with Pence, which the prosecutor has framed as personal, and not part of the Republican’s presidential role. Trial judge Tanya Chutkan may not be convinced that the conversations were private, Gillers added.
“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.
“Here, Smith relies on the fact that those conversations were with Trump as a candidate, not president, and were intended to make him the winner, which is not an official act and not immune,” he added.
Smith will have to convince a judge that high-level White House conversations were private, a legal analyst told Newsweek.
Photo Illustration by Newsweek/Getty Images
At the time, Trump was trying to force Pence to accept his claims that the election was rigged for Joe Biden. Smith says that Trump used a private attorney to pressure Pence into accepting the now-debunked claims that the 2020 election was rigged in Joe Biden’s favor.
As all vice presidents automatically become president of the Senate, Trump wanted Pence to use his Senate role to refuse to certify the 2020 election result.
Smith argues that, by using a private attorney to communicate with Pence, Trump cannot not claim presidential immunity.
“It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present,” Smith wrote in his evidence dossier, which was released on October 2.
Smith wants to fully lay out the case against Trump so that all immunity challenges can be dealt with early in the case. That prevents the Republican’s lawyers from raising an objection mid-trial.
The Supreme Court had already outlined in its ruling that the case against Trump should be fully articulated early to allow the federal courts to assess its constitutionality.
