Jack Smith faces a crossroads in Trump prosecution

Special counsel Jack Smith finds himself at more than one prosecutorial crossroads as he weighs how to move forward on former President Trump’s Jan. 6 case in the wake of the Supreme Court’s immunity decision.

Smith last week asked to extend deadlines in the case to late August, a shift for a prosecutor who previously pushed for a schedule that would bring the case to trial before the election.

The Supreme Court’s immunity ruling earlier this summer dealt a tough hand for Smith by determining that former presidents like Trump retain broad protection from criminal prosecution for actions they take while in office.

It’s left Smith at a juncture where he may choose to narrow his case, push for a hearing that would walk through much of the evidence against Trump, or even expand the indictment by charging the former president’s co-conspirators.

Barbara McQuade, a former U.S. attorney, said prosecutors often “choose the path of least resistance” in the interest of moving a case along. 

But with Trump’s team aggressively fighting the charges and thwarting Smith’s plans for a preelection trial, he may be reconsidering that approach, including eyeing the six co-conspirators who went unindicted alongside Trump.

“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,” McQuade said, noting the group includes campaign and legal advisers Rudy Giuliani, John Eastman, Jeff Clark, Sidney Powell, Kenneth Chesebro and Boris Epshteyn.

“But in light of the fact that 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.’”

Smith acknowledged the ruling in asking for the delay granted by Judge Tanya Chutkan, saying his team “continues to assess the new precedent set forth last month in the Supreme Court’s decision.”

It’s a process prosecutors noted requires consultation with other parts of the Justice Department. Joyce Vance, a former U.S. attorney, argued it is not worth rushing that work for Smith.

“You could go fast alone or far together,” she wrote on the social platform X.

“The opportunity to have some of the smartest lawyers in the country pushing back against decisions, making contrary arguments, and testing conclusions means that the Special Counsel will come out on the other side with positions that are that much stronger.”

Prosecutors have a lot to tease out of the court’s 43-page ruling.

The Supreme Court determined former presidents are immune from prosecution for actions they take in office that are part of their core executive functions, and that they are presumptively immune for all other official acts. It’s a ruling that barred any charges relating to Trump’s pressure campaign at the Justice Department and also called into question whether his conversations with then-Vice President Mike Pence were also off the table.

But another wrinkle Smith’s team must consider is an aspect of the ruling that limits using evidence related to official acts from supporting other charges. 

“They need to make a number of decisions. They have to decide what evidence do they have left potentially within the scope 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] is going to have its own elements that they have to prove beyond reasonable doubt, and they’ll have to assess whether the evidence that’s now off the table somehow collapses any of those counts so they can’t go forward,” she said.

“Then they’ll have to say, ‘OK, we’ll take the stuff off the table that we’re not allowed to use for sure under the court’s ruling.’ And then there’s the wiggle room stuff; there’s the stuff that is in the middle. ‘What’s absolutely crucial that we have to have in order to move forward?’”

McQuade also stressed that prosecutors will have to be strategic, weighing both what will survive at the district court level before Chutkan as well as at the Supreme Court, where the case will likely return given any Trump appeals.

“My guess is that’s the part that they’re really struggling with,” she said of the ruling’s remarks around what can serve as evidence.

“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.’”

Those complications could also push Smith’s team to seek to narrow the case, not expand it, perhaps dropping some of the charges against Trump, particularly any resting heavily on the former president’s plans to replace his Justice Department leadership with those willing to investigate his baseless claims of election fraud.

And some eager to see Trump tried for his role in Jan. 6 have also pushed for a so-called minitrial to review all the evidence prosecutors have collected on Trump. While live witness testimony might bolster any ruling from Chutkan as to what evidence and charges can be permitted in the case, the issue could also be handled with legal briefs. 

Choosing to indict the co-conspirators would also take more time, requiring prosecutors to again present the case to the grand jury before bringing the new charges.

There could be some benefit to prosecutors on that front.

“Because they’re not immune from prosecution, maybe those trials can go more quickly,” McQuade said, “and then you can flip them and get them to cooperate.” 

Whatever Smith’s plans, they likely won’t become clear before Aug. 30, the date Chutkan agreed to in extending deadlines in the case. A status conference is set to follow Sept. 5.

While Supreme Court Justice Neil Gorsuch said during arguments that the court would aim to write “a rule for the ages,” prosecutors will also be mulling how their arguments and future legal tangles with Trump might be weighed in the future.

“They’re not just in it to win it. When you’re at the Justice Department, the goal really is to get it right. And so now they have to really look at what the Supreme Court has said and do their best to conform to that,” McQuade said.

Wehle said the fact that the opinion doesn’t make clear what presidential conduct is purely private — and therefore prosecutable — adds another layer of unknowns the Justice Department must consider.

“The fact that there’s nothing that’s unofficial — I mean, that’s really troubling to me, because it leaves the court with a lot of discretion in another case,” Wehle said.

It’s something that gives the justices flexibility, she said, to determine what “the Constitution means in the next case that gets to them when it comes to the scope of the president’s power to commit crimes.” 

In contrast to past moves to speed consideration of the case, Smith did not push the Supreme Court to accelerate the 32-day window under which the case would be returned to the lower courts.

“Someone might say, ‘They’ve had it for 39 days. C’mon, work hard.’ But I think when you have to coordinate with all of these different agencies, especially looking at each piece of evidence, not just the allegations, but the evidence to prove it, it may require additional work,” McQuade said.

“So it strikes me as a bigger task than probably meets the eye.”