Jack Smith’s 'brilliant maneuver' has 'shifted' election indictment: ex-federal prosecutor

On Tuesday, August 27, special counsel Jack Smith revamped his election interference indictment against 2024 GOP presidential nominee Donald Trump. The indictment reboot is in response to the U.S. Supreme Court's controversial 6-3 immunity ruling in Trump v. the United States, and it leaves four federal charges in place: (1) attempting to obstruct an official government proceeding, (2) conspiracy to obstruct an official government proceeding, (3) conspiracy to defraud the United States, and (4) conspiracy to violate rights.

In Trump v. the United States, the High Court's six GOP-appointed justices ruled that presidents enjoy immunity from criminal prosecution for "official" acts but not for "unofficial" acts. And that is the standard that Smith must abide by in his election interference case.

University of Baltimore law professor and former federal prosecutor Kimberly Wehle praises Smith's handling of the re-indictment in an article published by the conservative website The Bulwark on August 29.

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Wehle argues, "Special counsel Jack Smith's superseding indictment of Donald Trump for his role in the January 6th insurrection at the Capitol and the wider effort to overturn the 2020 election is nothing short of a masterstroke…. Trump isn't getting any lighter treatment just because he has, in his corner, a majority of justices — three of whom he appointed, another whose wife supported the Stop the Steal campaign that gave rise to January 6th, and another whose wife flew flags signaling support for Trump at their home. Smith is not backing down."

The legal expert adds, "But what's especially impressive about Smith's maneuver is how brilliantly strategic it is."

Wehle notes that the High Court's hard-right supermajority presented some tough "hurdles" for Smith in their Trump v. the United States decision, but she believes Smith has skillfully responded to them.

"What Smith did is outmaneuver the Supreme Court majority by presenting a threshold question for Chutkan to decide: Is a candidate campaigning to win the presidency simultaneously operating in an official presidential capacity if he also happens to be the incumbent?" Wehle explains. "This is the kind of clean legal issue that could be resolved without a messy evidentiary hearing."

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Wehle cautions, however, that the High Court may find a way to derail Smith's re-indictment.

"Of course, the right-wing justices could still decide that the specific actions alleged in the indictment are too 'official' for their taste and kill the January 6th case for good," the former federal prosecutor observes. "But for now, Smith has shifted the debate onto his turf."

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Kimberly Wehle's full article for The Bulwark is available at this link.