A Supreme Court decision in favor of presidential immunity has sent special counsel Jack Smith back to the drawing board, The Hill reported. Smith will now decide whether to change how he proceeds or abandon his case against former President Donald Trump.
Smith is pursuing Trump for his supposed involvement in the Jan. 6, 2021, riot at the U.S. Capitol. However, Trump has been vindicated, and the game has changed now that the high court has ruled that a president cannot be prosecuted for certain conduct.
With the Supreme Court's decision, Smith is left weighing his options on how to proceed with his case. Each charge must be tested against the standard of the decision, and that requires more time and perhaps even a new strategy.
Trump was supposed to be in court while in the thick of the 2024 presidential campaign season. Now, Smith lost that chance as it's unclear whether Trump will be back in a courtroom before the election at all.
Prior to the Supreme Court's intervention, Smith was intent on getting a jump on the trial start date. Now, he's asked the court for more time as he updates his strategy, as Election Day is less than three months away.
Smith has two clear paths to choose from now if he wishes to proceed quickly. One is for him to eliminate all charges except the ones he's sure won't get tossed because of immunity, while the other is to branch outward and begin charging others involved in the upset as his co-conspirators.
Trump's defense has done such a good job pushing back against Smith that it may be beneficial to pivot to going after others involved. Meanwhile, former U.S. attorney Barbara McQuade said it's likely Smith will "choose the path of least resistance" to get his case to trial.
For McQuade, that means pursuing some of the people on Trump's legal team at the time of the riot, such as Rudy Giuliani, Sidney Powell, John Eastman, Boris Epshteyn, Kenneth Chesebro, and Jeff Clark. So far, Smith has focused only on 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. 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.'"
Whichever way Smith decides to proceed, he's likely to encounter the immunity issue at every turn. Even if Smith gets Trump convicted, it is likely to be overturned on appeal if any piece of evidence is deemed part of that immunity.
The Supreme Court's ruling said that actions taken by a president in an executive capacity are covered as are any official acts. That means the conversations Trump had with then-Vice President Mike Pence, which were central to Smith's case, are no longer admissible.
Other evidence will similarly be subject to the same scrutiny. "They need to make a number of decisions," University of Baltimore constitutional law professor and former federal prosecutor Kimberly Wehle said.
"They have to decide what evidence do they have left potentially within the scope of the immunity ruling. 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," Wehle explained.
Smith was supposed to be the person to finally stop Trump as the Democrats had hoped. Unfortunately for Smith and the rest of the left, the Constitution doesn't allow for that kind of action against a former president, no matter how much they'd like it to.
