Lawyer: Jack Smith’s ‘reckless gambling’ could seal his own end

Special Counsel Jack Smith took a “reckless risk” in the federal election interference case against Donald Trump that could lead to the case being dismissed, a legal expert 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 related to Trump’s communications with Vice President Mike Pence secret in the wake of the Supreme Court’s immunity decision could “break” the Jan. 6 case.

In a landmark decision in July, the Supreme Court found that Trump enjoyed at least presumptive immunity as president for official acts performed while in office, threatening to jeopardize Smith’s case.

In response, Smith announced a new indictment against Trump. The indictment contained the same four federal counts to which the former president pleaded not guilty, but removed allegations that Trump pressured the Justice Department to support his false claims that the 2020 election results were rigged due to widespread voter fraud.

The revised document maintained allegations that Trump pressured Pence not to certify the results of the 2020 election on January 6, 2021, while the vice president was serving in his purely ceremonial role as presiding officer of the Senate.

Honig said Smith’s “defiant” decision to continue pursuing allegations about Trump’s communications with Pence after the Supreme Court’s immunity ruling “is likely to damage his own cause and perhaps eventually end it altogether.”

In the post titled “His reckless gambling could destroy the Jan. 6 case,” Honig wrote that the highest court in the land has ruled that “any conduct that is outside the President’s constitutional duties but is nonetheless within his official powers is ‘presumptively’ immune. That is, we initially assume it is immune unless the prosecutor can clearly prove that the conduct had nothing to do with his office itself. By definition, that’s an uphill battle for Smith.”

“As an example of conduct that falls into this middle ground, the Court cited Trump’s interactions with Vice President Mike Pence, including Trump’s pressure on Pence to reject electoral votes on January 6. Given the Court’s instruction, it would have been safest for Smith to strike the allegations against Pence from his new indictment,” Honig continued. “But instead, Smith left the allegations against Pence largely unchanged, tweaking only around the edges.”

“Even if judges [Tanya] Chutkan agrees with Smith that the charges against Pence can remain in the case and Trump can appeal that decision before the trial. Therefore, the Pence issue, among others, will likely end up back before the Supreme Court,” the lawyer added.

Honig said if the Supreme Court were to strike the charges against Pence from Smith’s case, it would be “as good as over for the prosecution.”

“Smith loses another pillar of his case, and it’s not clear he can tell his story coherently without the Pence aspect,” Honig said. “Even if he wanted to move on, Smith would have to go to a new grand jury again – for the third time – to get another, even weaker indictment.”

“At this point, Smith could raise the white flag and drop the case altogether. He might have no other choice,” he continued.

Honig added that Smith might be able to convince the Supreme Court to back him if he could argue that Trump’s conduct toward Pence “appears to have been motivated not by his desire to serve as president, but rather by his desire to steal an election.”

“But the court does not seem interested in asking questions about whether the president is acting in good or bad faith. On the contrary, the court noted, the trial judge must distinguish official from unofficial actions ‘without considering the president’s motives,'” Honig said.

“In other words, the court said, we don’t care whether the conduct was good or bad. What matters is whether the president did something that, on its face, is something presidents do – and ‘talking to the vice president’ probably counts as one of them,” he added.

A spokesman for Smith’s office declined to comment when contacted by Newsweek.

During a recent hearing on how to proceed in the case after the immunity decision, Trump’s attorney John Lauro said the entire case would have to be dismissed if Chutkan ruled that the charges against Pence should be dropped.

Lauro argued that jurors involved in the federal indictments heard evidence that the Supreme Court’s decision said should not be used against Trump.

“The Supreme Court has already ruled that the conversations between Trump and Pence are an official act,” Lauro told Chutkan.

The judge responded, CNN reported: “I disagree with you, Mr. Lauro. You sent me this to find out.”