CNN legal analyst Ellie Honig said Tuesday that special counsel Jack Smith has “scaled back” his election case against Republican candidate Donald Trump following the U.S. Supreme Court's ruling on presidential immunity.
Smith on Tuesday filed an additional indictment containing the same four charges originally handed down on Aug. 1, 2023, related to alleged interference in the 2020 election. Honig said Smith has removed several portions of the original indictment that could be considered “official acts,” accusing Trump only of attempting to “pressure state and local officials” and “submit a false slate of electors.”
“If one wonders why Jack Smith scaled back his lawsuit, the answer is due to the Supreme Court's immunity decision handed down in July,” Honig said. “That decision found that a number of actions taken by Donald Trump while in office were exempt from immunity, specifically his interactions with the Department of Justice, his public communications and possibly his interactions with the President. [former] vice president [Mike Pence]they will likely be exempt from liability and therefore will not be covered by this case.”
“So Jack Smith made a strategic decision: 'I'm not going to fight to keep those elements in the litigation. I'm going to take them out of the litigation and focus on the pressure that Donald Trump put on state and local officials and the fake electoral college scheme and move forward with the litigation with those elements in place,'” Honig continued.
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In a 6-3 decision, the Supreme Court ruled that the president has immunity from prosecution for “official business” performed while in office on July 1. Chief Justice John Roberts wrote in the majority opinion that the analysis of what counts as official business is best left to lower courts. (Related: CNN's Ellie Honig says she wouldn't be 'at all surprised' if Trump's Georgia lawsuit was dismissed)
Smith Charged An indictment will be filed against President Trump in August 2023, accusing him of “conspiracy to defraud the United States,” “conspiracy to corruptly disrupt and impede the proceedings of January 6th,” and “conspiracy against the right to vote and to have votes counted.”
“I think this is kind of a tactical retreat,” Honig continued. “I think after the Supreme Court's immunity decision, Jack Smith decided, 'I don't want to spend the time and resources fighting to get other parts of the case included.' So what Jack Smith did is retreat to the safest position, to the parts that the Supreme Court has determined are probably okay but not immunity. They said it's likely not the president's job to interact with and pressure state and local officials.”
Honig added that Trump's legal team would likely appeal the new indictment and argue for immunity in the remaining cases. The legal analyst said there was a “zero percent” chance the case would be tried before the Nov. 5 election.
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