'Room to maneuver': Ex-federal prosecutor details Jack Smith’s narrow path forward

02 July 2024

Following the U.S. Supreme Court's 6-1 ruling in Trump v. the United States, many legal experts have been grappling with the question: Where do the four criminal indictments against former President Donald Trump go from here?

The High Court's six GOP-appointed justices ruled that a president enjoys absolute immunity from criminal prosecution for "official" acts committed in office but not for "unofficial acts." Justice Sonia Sotomayor was quite scathing in her dissent, arguing that the High Court has given presidents the green light to commit criminal acts and get away with it.

Trump v. the United States was the former president's challenge to special counsel Jack Smith's election interference case, which, according to former federal prosecutor Ankush Khardori, still has a narrow path to move forward — perhaps even before the 2024 presidential election in November.

In an article published by Politico on July 2, Khardori notes that the ruling's "immediate effect will be to exponentially shrink the odds of a trial before November."

"Still, the decision does leave some room for Justice Department prosecutors to maneuver, and for U.S. District Judge Tanya Chutkan, who is presiding over the case, to move forward before November," the former federal prosecutor argues. "Both prosecutors and the judge should do everything within their power to do so — notwithstanding the Republican appointees' evident desire to make that as difficult as possible. The ruling is undeniably a major win for Trump, and has already infuriated many in the legal world, though it was no surprise where this was headed."

Khardori goes on to argue that although the High Court has put Smith and his colleagues at the U.S. Department of Justice (DOJ) "in a terribly difficult position," they "should advance the case as aggressively as possible, even if that means that it cannot be fully resolved by Election Day." And he stresses that Chutkan has her work cut out for her.

"One way to go forward would be for Chutkan to solicit briefs as quickly as possible on the parties' position on the status of the indictment in the wake of the Court's ruling," Khardori explains. "Trump will continue to argue that it should all be dismissed or held in abeyance for some reason or another, but Smith and his team can present their best case for continuing the prosecution after the Supreme Court's ruling."

The former DOJ prosecutor continues, "If, for some reason, there are evidentiary questions that need to be resolved, those hearings should happen as quickly as possible, and the government should present as much evidence as is reasonably possible — including evidence concerning the conduct on Trump's part that remains at issue in the prosecution, and including evidence that has not yet become public."

Ankush Khardori's full article for Politico is available at this link.

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