Special counsel Jack Smith has made a “reckless gamble” in the federal election obstruction case against Donald Trump, which could result in it being dismissed, a legal expert has said.
Elie Honig, a legal commentator and former federal and state prosecutor, wrote in a blog post for Cafe that Smith’s decision to keep the allegations involving Trump’s communications with Vice President Mike Pence in the wake of the Supreme Court‘s immunity decision could “tank” the January 6 case.
In a landmark July decision, the Supreme Court ruled that Trump had at least presumptive presidential immunity for officials acts performed while in office, which threatened to upend Smith’s case.
In response, Smith announced a new superseding indictment against Trump. The indictment carried the same four federal charges that the former president pleaded not guilty to, but it removed allegations that Trump pressured the Department of Justice to support his false claims that the 2020 election results were rigged because of widespread voter fraud.
The revised document kept the allegations that Trump pressured Pence to not certify the 2020 election results on January 6, 2021, while the vice president carried out his purely ceremonial role as presiding officer of the Senate.
Honig has said that Smith’s “defiant” decision to press on with the claims relating to Trump’s communications with Pence following the Supreme Court’s immunity ruling “likely will hurt his own cause, and perhaps eventually end it altogether.”
Special counsel Jack Smith delivering remarks on an unsealed indictment, including four felony counts against former President Donald Trump, in Washington, D.C., on August 1, 2023. Legal commentator Elie Honig said Smith has made a “reckless gamble” in the federal election obstruction case, which could result in it being thrown out.
Drew Angerer/Getty Images
In the post, titled “His Reckless Gamble Could Tank the Jan. 6 Case,” Honig wrote that the nation’s highest court had ruled that “any conduct that falls outside the president’s core Constitutional duties but still within his official powers is ‘presumptively’ immune—meaning we start by assuming it’s immune, unless the prosecutor can prove clearly that the conduct had nothing to do with the job itself. Definitionally, it’s an uphill climb for Smith.”
“As an example of conduct that falls within this middle ground, the Court cited Trump’s interactions with Vice President Mike Pence, including Trump’s pressing of Pence to reject electoral votes on January 6. Given the Court’s instruction, it would’ve been safest for Smith to remove the Pence allegations from his new indictment,” Honig continued. “But instead, Smith left the Pence allegations largely intact, tweaked at the margins.”
“Even if Judge [Tanya] Chutkan does agree with Smith that the Pence allegations can remain in the case, Trump gets to appeal that determination, before trial. So the Pence question, among others, will likely end up right back at the Supreme Court,” the attorney added.
Honig said that if the Supreme Court ended up removing the Pence allegations from Smith’s case, it would be “just about all over for the prosecution.”
“Smith loses another pillar of his indictment, and it’s not clear he can tell his story in a coherent manner without the Pence angle,” Honig said. “Even if he wanted to proceed, Smith would have to go back to a new grand jury—for a third time—to obtain yet another, even slimmer superseding indictment.”
“At that point, Smith might wave the white flag and dump the case altogether. He might have no other choice,” he continued.
Honig added that Smith might be able to persuade the Supreme Court to back him if he could argue that Trump’s conduct toward Pence was “seemingly motivated not by his desire to do the job of president but rather to steal an election.”
“But the Court seems uninterested in probing inquiries about good or bad faith. To the contrary, the Court noted, the trial judge must differentiate official from unofficial acts ‘without considering the President’s motivations,”’ Honig said.
“In other words, the Court said, we don’t care whether the conduct was good or bad. It’s about whether the president did something that, on its face, is something presidents do—and ‘talking to the vice president’ probably qualifies,” he added.
A spokesperson for Smith’s office declined to comment when contacted by Newsweek.
During a recent hearing on how the case should proceed following the immunity decision, John Lauro, Trump’s lawyer, said the entire case must be thrown out if Chutkan decided the claims involving Pence should be removed.
Lauro argued that grand jurors involved in the federal indictments had heard evidence that the Supreme Court ruled could not be used against Trump.
“The Supreme Court has already decided that the conversations between Trump and Pence is an official act,” Lauro told Chutkan.
The judge replied, CNN reported: “I would disagree with you, Mr. Lauro. They sent that to me to figure out.”
