Special Counsel Jack Smith is facing multiple crossroads as a prosecutor as he considers how to proceed in the Jan. 6 case against former President Trump following the Supreme Court’s immunity decision.
Smith last week asked for the deadline for the case to be extended until late August, marking a change of tack for prosecutors who had previously insisted on a timeline to bring the case to trial before the election.
The Supreme Court’s immunity decision earlier this summer was a tough one for Smith, ruling that former presidents like Trump enjoy broad protection from criminal prosecution for actions taken while in office.
That puts Smith at a crossroads where he could choose to narrow the scope of the lawsuit and ask for hearings to consider much of the evidence against Trump, or broaden the indictment by charging Trump’s co-conspirators.
Former U.S. Attorney Barbara McQuaid said prosecutors often “choose the path of least resistance” to move their cases forward.
But with the Trump campaign aggressively fighting the charges and blocking Smith’s plans for a pre-election trial, Smith may be rethinking his approach, including turning his attention to the six co-conspirators who were not indicted alongside Trump.
“The reason Jack Smith didn’t initially name them was probably because he wanted to simplify and wrap up the case against Trump quickly, because it was Trump who was the threat to democracy,” McQuade said, noting that the group included campaign advisers and legal advisers Rudy Giuliani, John Eastman, Jeff Clark, Sidney Powell, Kenneth Chesebro and Boris Epshteyn.
“But given the fact that no trial is taking place [before the election]Maybe he decided, ‘Yes, it’s time. I’m going to prosecute the other defendants.'”
Smith granted Judge Tanya Chutkan’s request for a delay, saying his team was “continuing to evaluate the new precedent set out in the Supreme Court’s decision last month.”
The process would require consultation with other parts of the Justice Department, they noted. Former U.S. Attorney Joyce Vance argued it wasn’t worth rushing the work just for Smith.
“We can go fast alone or we can go far together,” she wrote on social platform X.
“Having the opportunity for the best lawyers in the country to challenge the decision, argue the contrary and test the conclusions means the special counsel will be in a stronger position to rule.”
Prosecutors are expected to reveal much more from the court’s 43-page ruling.
The Supreme Court ruled that former presidents are immune from prosecution for acts that are part of the primary executive functions of their office and have presumptive immunity for all other official acts. The decision blocks any prosecution related to Trump’s pressure campaign against the Justice Department and raises questions about whether his conversations with then-Vice President Mike Pence were off the table.
But another issue Smith’s team must consider is the aspect of the ruling that also limits the use of evidence related to official duties to support other charges.
“They have a lot of decisions to make. They have to determine what evidence potentially remains within the scope of the immunity ruling,” said Kimberly Wehrle, a former federal prosecutor and now a constitutional law professor at the University of Baltimore.
“Each of the four counts [brought against Trump] “The prosecution has its own elements that they have to prove beyond a reasonable doubt and they have to evaluate whether there is evidence that has not now been presented that would undermine any of those charges and prevent the trial from proceeding,” she said.
“Then they have to say, ‘Anything that hasn’t been authorised for use by a court decision is off the table.’ And then there’s the leeway, the middle ground. ‘What is absolutely necessary to move forward?'”
McQuaid also stressed that prosecutors need to strategically consider both what remains before Chutkan at the district court level and whether a case would likely return to the Supreme Court if Trump appeals it.
“I think that’s the part they’re really struggling with,” she said of the sentencing remarks about what serves as evidence.
“What you don’t want to do as a prosecutor is win the battle and then lose the war, build a great case, gather evidence, get a conviction and then ultimately have it overturned. [Supreme] The court says, “Oh, you know one of the pieces of evidence that you used about what Mr. Trump said? That was an official act.”
These complexities may lead Smith’s team to seek to narrow rather than expand the case, perhaps dropping some of the charges against Trump, particularly those that hinge heavily on the former president’s plan to replace top Justice Department officials with those willing to investigate unfounded claims of election fraud.
And some who are eager to see Trump tried for his role in Jan. 6 are calling for a so-called mini-trial in which prosecutors would review all of the evidence they have collected against Trump. Chutkan’s ruling on what evidence and charges may be allowed in the case could be bolstered by live witness testimony, though the issue could also be addressed in oral argument briefs.
Choosing to indict co-conspirators would also take more time, as prosecutors would have to re-present the case to a grand jury before bringing new charges.
In that respect, the prosecution may have some advantage.
“The trials might move faster because they’re not immune to prosecution,” McQuaid said, “and then we can turn them around and get them to cooperate.”
Whatever Smith’s plans are, they likely won’t become clear until Aug. 30, when Chutkan agrees to an extension of time in the case. A status conference is scheduled for Sept. 5.
Supreme Court Justice Neil Gorsuch said during arguments that the court would seek to set “timeless rules,” but prosecutors will likely be considering how their arguments and future legal battles with President Trump are evaluated in the future.
“They’re not just in it to win. If you’re in the Justice Department, your real goal is to get the decision right. So now they have to really consider the Supreme Court’s decision and do their best to follow it,” McQuade said.
Wehle said the ruling doesn’t clarify whether the president’s actions were purely personal and therefore actionable, adding another unknown factor the Justice Department must consider.
“The fact that there’s nothing informal is really disturbing to me because it gives the court a lot of discretion in other cases,” Wehle said.
That gives them flexibility to decide “what the Constitution means in the next case that concerns them regarding the scope of the president’s criminal powers,” she said.
Judge Smith did not press the Supreme Court to expedite the 32-day period that would see the case sent back to a lower court, in contrast to past moves to speed up consideration of the case.
“Some people might say, ‘You’ve been investigating for 39 days now, good luck,’ but it may take additional work to coordinate with various agencies and especially to look at each piece of evidence – not just the allegations but the evidence that proves them,” McQuade said.
“So it seems to me like this is a lot harder job than it looks.”
