Former federal prosecutor Andy McCarthy said Special Counsel Jack Smith wanted former President Donald Trump “convicted” of Jan. 6-related charges before the 2024 election.

The Supreme Court agreed to consider Smith’s request to provide expedited review of an appeal of a district court ruling by judge Tanya Chutkan that rejected a motion by Trump’s attorneys to dismiss the charges. The high court is also reviewing a challenge to a statue the Justice Department used against many Jan. 6 defendants that Trump was also charged with violating.

“The default position of federal law, Larry, is that you try the whole case including all the litigation in the trial court first and then after it’s all over, if there is a conviction, jury verdict and sentence then the whole kit and caboodle go up to the court of appeals,” McCarthy told Fox Business host Larry Kudlow. “There are a handful of issues you get pretrial appeals, one of which is immunity.”

“The other important doctrine of law here, is that in federal law, once there’s an appeal, even if it is an appeal pretrial, the district court, the trial court, Judge Chutkan, you just referred to, loses jurisdiction over the case because the whole case goes up to the court of appeal,” McCarthy added.


Chutkan paused pre-trial proceedings while Trump’s immunity claim remains pending during the appeals process Wednesday.

“This is very important to Trump and to the Biden Justice Department,” McCarthy said. “Trump is trying for delay. He wants to push everything past Election Day. The Biden Justice Department, the whole point was trying to get him convicted before election day.”

McCarthy also said that Smith might have erred by putting the case before the Supreme Court.

“Smith, I believe, may have fumbled into a mistake here in his haste to get the immunity issue in front of Supreme Court,” McCarthy told Kudlow. “It is understandable why he wants to go fast, that has been their plan all along. The only thing he wants the Supreme Court to look at is the immunity claim. What Donald Trump has always wanted to get the case in front of the Supreme Court so they can look at the charges.”

“The Supreme Court never decided whether a former president has immunity from criminal prosecution for his presidential acts, but I think his charges in this case are very shaky and what Trump has always wanted is to get this case in front of the Supreme Court before the trial, because if they have a trial and he gets convicted, then the issue is ‘would the Supreme Court throw out the conviction?’ Here, I think it would just be, ‘Have a look at the charges and see if this is really legal,’” McCarthy added.

Harold Hutchison on December 14, 2023

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