On Tuesday, a former high-level Justice Department official suggested that Jack Smith may have inadvertently placed a “land mine” in his January 6 case against former President Donald Trump, which could easily backfire on the special counsel.
Jim Trusty, the former chief of the DOJ’s Organized Crime and Gangs Division, stated that the Supreme Court’s recent ruling on presidential immunity for “official acts” specifically addresses how the inclusion of “immunized” evidence can influence a jury’s perception of a defendant. This is particularly relevant given arguments by Trump’s lawyers that both Smith and U.S. District Judge Tanya Chutkan have already presented evidence against the former president that should have been deemed inadmissible. “The opinion says not just that immunized information is not proper before the court at trial, but that it contaminates the grand jury process if you include that information in pursuing an indictment,” Trusty told CNN.
In other words, the special prosecutor has already disclosed evidence against Trump that will make a fair trial impossible. “That’s a huge landmine,” Trusty continued. “He’s trying to get in front of it before Judge Chutkan has to rule on all of these acts to decide which stuff is fair game or which stuff isn’t. But the problem is, if he guesses wrong in one instance – if he says ‘Oh, the president was consulting Mike Pence, the president of the Senate, not the vice president’ as part of this new indictment – then if he gets it wrong once, he’s got the same problem. He’s gotta go back to the grand jury, re-indict for the third time, based on this ruling from the Supreme Court.”
When pressed by the host about the complexity of charging any current or former president with actions taken as a candidate, Trusty asserted that America’s founding document is unambiguous on the matter. “The Constitution seems to suggest… that we don’t want to have our presidents hobbled with constant fear or prosecution by state and federal prosecutors,” he said.
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A federal grand jury in Washington, D.C., reindicted Trump on four felony charges related to his alleged attempts to overturn the 2020 presidential election results. The 36-page indictment, filed by Smith on Tuesday, seeks to address changes in the case against Trump following the Supreme Court’s decision over the summer, which affirms broad immunity for presidents regarding actions taken in their official capacity.
During an appearance on Fox News Special Report with Bret Baier, Georgetown Law School Prof. Jonathan Turley also appeared to doubt that Smith’s new indictment against Trump would fare well. Turley noted that despite Smith removing contradictory evidence, he still doesn’t believe “it solves the problem” of the main arguments against Trump due to some issues protected under the Supreme Court’s decisions.
“It’s the shrinkflation indictment. It’s the same packaging, just less product inside. What they did is kept the four charges, and they just took out any evidence that clearly would have contradicted the Supreme Court’s decision on presidential immunity. It does not hold together, in my view, very well. I don’t even think it solves the problem,” Turley said.
“For example, he is keeping in, as one of the four main allegations, Trump’s communications with and to Pence. That’s still presumptively protected under the Supreme Court decision. He also includes communications with members of Congress that could also trip a wire,” Turley continued. “The first two main theories deal with state officials and the slates, the alternative slates that Trump’s team was pushing. So he doesn’t really get out of the problem that many still see with this.”
“What’s also interesting, Bret, is he keeps the charges of obstruction of official proceedings. There was a second case, the Fisher case, that dramatically narrowed how prosecutors can bring that charge,” Turley said. “They have to essentially allege tampering of evidence or destruction of evidence. It’s not clear how he’s going to thread that needle on those charges.”
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