Jack Smith's efforts to salvage his case against Trump with a new indictment after a major setback at the Supreme Court look more like a political ploy than a serious legal strategy, experts told the Daily Caller News Foundation.
The indictment against Smith filed Tuesday included the same four charges but removed sections where the Supreme Court had clearly determined that Trump could not be prosecuted as a former president, such as communications with the Department of Justice (DOJ), and updated it to emphasize that Trump's actions were personal, not public. With virtually no chance of a trial before the election and the potential for a decisive outcome in his case depending on the results in November, legal experts told the DCNF that Smith's effort is doomed to fail.
“This prosecution may be Smith's last,” former federal prosecutor Andrew Cherkasky told the DCNF, noting that Smith had “no legitimate legal obligation” to bring charges so close to the election. (RELATED: Jack Smith files indictment against Trump in 2020 election case)
“The Department of Justice typically suspends prosecutions of political candidates 60 days before an election,” Cherkassky continued. “If Trump is elected, Smith and his case will undoubtedly be forfeited, and Smith will likely return to The Hague, where he was before he was appointed special counsel by Trump. [Attorney General Merrick] wreath.”
Cherkassky said Smith's new indictment appears designed to “load another round of accusations against President Trump in an attempt to sway public opinion.”
“Mr. Smith has done nothing to protect President Trump's constitutional right to the presumption of innocence. Instead, he is viciously violating the integrity of the upcoming election,” he said. “Mr. Smith's prosecution is aimed at punishing those he says attempted to subvert our democracy, while he himself seeks to influence the outcome of our democratic process through allegations he knows will not be resolved for years to come.”
'This case isn't going anywhere': Andy McCarthy says 'nothing' will happen in Jack Smith's new Trump indictment pic.twitter.com/nObHKoLlnq
— Daily Caller (@DailyCaller) August 28, 2024
Mike Davis, president of Article 3 Project, agreed. It is called The new indictment is a “last resort” attempt to interfere in the election.
“His goal is to have an evidentiary hearing, a mini-trial, on presidential immunity, in front of Obama Judge Tanya Chutkan in Washington, D.C., before the election,” Davis told Voice of Real America on Wednesday.
Former federal prosecutor Joseph Moreno told the DCNF that while the new indictment isn't surprising, what is surprising is how little it deviates from the original indictment.
“The four charges remain intact, essentially removing some foundational facts and focusing on Mr. Trump's activities as a candidate rather than as president,” he said. “While this may be easier to read, it arguably suffers from the same flaws as the original charges, which is that official conduct is not only indictable, but inadmissible as evidence.”
The Supreme Court ruled in July that a president cannot be prosecuted for official conduct while in office. The majority opinion said Trump “cannot be prosecuted for conduct related to his discussions with Justice Department officials” but left other allegations to lower courts to decide.
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