Jack Smith Has Wrenching Decisions To Make If He Wants Any Chance of Trying Trump

Judge Tanya Chutkan’s invitation to Special Counsel Jack Smith and President Trump to present their visions for how her immunity proceedings should unfold could be a moment for the prosecutor to renovate his case — or double down on his indictment. The jurist has given both sides until Friday to “file a status report that proposes, jointly to the extent possible, a schedule for pretrial proceedings moving forward.” She adds that “if necessary, the parties may explain any disagreements” in a supplement. It appears likely that the sides will avail themselves of that option. While the solicitation of scheduling proposals from the parties is standard procedure in the run-up to trial, Mr. Smith and Trump are tasked with sketching the unprecedented. There have never before been hearings in district court to determine which of a former president’s indicted acts were official, and therefore presumptively immune, and which were unofficial and bereft of protection.Judge Chutkan’s ruling that former presidents are not entitled to any immunity gave the special prosecutor carte blanche to keep the proverbial kitchen sink in his indictment, which charged Trump with four crimes connected to efforts to overturn the results of the 2020 election. The United States Court of Appeals for the D.C. Circuit upheld that ruling, but it was overruled by the high court. Judge Chutkan has made her own views clear on the matter — she even declared that “presidents are not kings” when handing down a harsh sentence to a January 6 protester — and could lend Mr. Smith a sympathetic ear.Now, as he faces Judge Chutkan, Mr. Smith has a wrenching choice to make. He can litigate his indictment as he wrote it, or amend it in the name of keeping alive the possibility of a trial on the far side of the “mini trial” over immunity. Prosecutors are not bound by the first editions of the indictments they write — they can issue a “superseding” one that adds or subtracts charges and evidence. Mr. Smith did that in the Mar-a-Lago case that Judge Aileen Cannon dismissed.Attorney General Garland, when he appointed Mr. Smith, announced that the special counsel would “comply with the regulations, procedures, and policies of the Department” of Justice. That guidance mandates that the “attorney for the government should commence or recommend federal prosecution” if he believes a crime has been committed and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”The Supreme Court’s ruling in the immunity case dramatically curtails Mr. Smith’s cache of “admissible evidence.” The justices held that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives,” and that a court may not “deem an action unofficial merely because it allegedly violates a generally applicable law.” The Nine also found that Trump’s interactions with Vice President Pence and the DOJ are presumptively immune. Mr. Smith will have a high bar to clear.The justices have ordered a “fact-specific analysis of the indictment’s extensive and interrelated allegations,” a process that could take months. During oral arguments in the immunity case, the government’s advocate, Michael Drebeen, insisted that Mr. Smith would persist in prosecuting an “integrated conspiracy” even as Justice Amy Coney Barrett suggested that the case against Trump be confined to what she called “private,” or unofficial, acts. During those same oral arguments Trump’s attorney, John Sauer, conceded that allegations concerning Trump’s convening of so-called alternate electors would be prosecutable. One of the 45th president’s lawyers, though, subsequently took to television to walk back that characterization. The Supreme Court tasks Judge Chutkan with determining whether “Trump’s conduct in this area qualifies as official or unofficial.”Mr. Smith could decide that with the possibility of a trial before the election precluded, he has nothing to lose in litigating his full indictment up and down the appellate ladder — including back at the Supreme Court. If Trump wins in November, the case’s future is bleak due to the presidential prerogative over the DOJ and the pardon power. If Vice President Harris triumphs, the special counsel will have four years — at least — to see the case through.While the logic of the Supreme Court’s grant of presidential immunity would seem to compel a skinnier indictment, the special counsel’s team could also contemplate a different approach. Six unindicted co-conspirators — Mayor Giuliani, John Eastman, Sidney Powell, Kenneth Chesebro, Jeffrey Clark, and Boris Epshteyn — are referenced in the indictment. Unlike District Attorney Fani Willis, Mr. Smith charged only Trump. Could they now prove vulnerable to being hauled into court, with no immunity in tow?

Jack Smith Has Wrenching Decisions To Make If He Wants Any Chance of Trying Trump

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