Jack Smith’s effort to salvage his case against Trump with a new indictment after a major setback at the Supreme Court looks more like a political stunt than a serious legal strategy, experts told the Daily Caller News Foundation.
Smith’s superseding indictment filed Tuesday included the same four original charges, only without portions the Supreme Court explicitly held that Trump is immune from being prosecuted for as a former president, such as his interactions with the Department of Justice (DOJ), and updated to emphasize the personal, not official, nature of Trump’s actions. With the odds for a pre-election trial essentially zero and his case potentially coming to a decisive end pending the results in November, legal experts told the DCNF Smith’s efforts are likely doomed to fail.
“You could say this indictment is potentially his swan song,” former federal prosecutor Andrew Cherkasky told the DCNF, noting there is “no legitimate legal requirement” for Smith to bring the indictment so close to the election.
“The DOJ ordinarily pauses prosecutions of political candidates 60 days ahead of the election,” Cherkasky continued. “If Trump is elected, Smith and his cases are undoubtedly thrown away and Smith is likely to head back to The Hague where he was before being appointed as a special prosecutor by [Attorney General Merrick] Garland.”
Cherkasky said Smith’s new indictment appears designed “to interject one more round of condemnation of President Trump in order to sway public opinion.”
“Smith is doing nothing to protect Trump’s constitutional right to a presumption of innocence, and instead, he’s a caustic interloper in the fairness of the upcoming election,” he said. “Smith’s entire prosecution is aimed at punishing those he says tried to overthrow democracy, while he himself attempts to influence the outcome of the democratic process through allegations he knows cannot be decided until years down the road.”
Article III Project President Mike Davis likewise called the new indictment a “last-ditch effort” to interfere in the election.
“His goal is to have an evidentiary hearing, a mini-trial, in front of DC Obama Judge Tanya Chutkan before the election on presidential immunity,” Davis said Wednesday on Real America’s Voice.
Former federal prosecutor Joseph Moreno told the DCNF the new indictment was not surprising, though it was surprising how little it deviated from the original.
“The four charges remain, with essentially some of the underlying facts stripped out and more emphasis placed on Trump’s activities as a candidate rather than as President,” he said. “This may read better, but likely suffers all the same ailments as the original, namely that not only are official acts not subject to prosecution, they are also inadmissible as evidence.”
The Supreme Court held in July that presidents are immune from prosecution for official acts taken in office. The majority opinion determined Trump was “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials” but left lower courts to address the other allegations.
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