Could Jack Smith’s Donald Trump Gamble Pay Off?

Jack Smith’s new indictment of Donald Trump is a risky move that could mean legal argument dominating the case for years, legal experts have told Newsweek.
A professor said he believed the case against Trump is now dead. And an attorney said that the newly framed charges will be open to challenge by the former president all over again, from the trial judge, all the way back up to the Supreme Court.
Smith, the chief prosecutor in the case, went before a grand jury and obtained a new superseding indictment that simplifies the election fraud case against Donald Trump.
Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021 riot at the U.S. Capitol. The Republican presidential nominee has pleaded not guilty and has said the case is part of a political witch hunt.
The Supreme Court ruled 6-3 on July 1 that presidents have broad immunity for official acts. The court said that presidents have absolute immunity for core political acts and have some immunity for other acts committed as president, but no immunity for strictly private conduct.
It also ruled that official acts cannot be used as evidence if taking a case against a president for unofficial acts, a part of the ruling that is highly relevant to the Trump case.
Because Smith has filed a new indictment in response to the Supreme Court, Trump is free to challenge it anew, starting with the trial judge, Tanya Chutkan, and moving up through the federal courts to the Supreme Court.
Paul DerOhannesian, an attorney based in Albany, New York, with more than three decades of crime defense experience, told Newsweek that the new indictment opens up two grounds of appeal for Trump, based on two separate Supreme Court decisions.
“It is likely this indictment will lead to lengthy litigation and another trip to the Supreme Court, without any resolution before the presidential election,” DerOhannesian said.
The first challenge will be based on the Supreme Court’s July 1 presidential immunity ruling.
“Other than removing allegations that were clearly deemed out of bounds by the Supreme Court, the new indictment against President Trump contains essentially the same allegations.”
“This will require further hearings and review to determine if the remaining acts and communications are protected by Presidential immunity,” DerOhannesian said.
Some of these lengthy challenges will be based on Trump’s communications with Congress and the vice president, he believes.
“The portions of the indictment relating to communications with the Vice President and Congress will need to be scrutinized to see if they fall within the immunity standard identified by the Supreme Court,” he said.
Trump will have a second challenge, based on the June Supreme Court decision in a January 6 obstruction of justice case.
On June 28, the Supreme Court made it more difficult to bring obstruction charges in an election subversion case.
The justices ruled 6-3 to overturn a lower court’s decision to allow an obstruction charge against Joseph Fischer, a former police officer who was allegedly involved in Trump supporters’ January 6 occupation of the Capitol.
“The obstruction charge will also have to be reviewed by the courts to see if the allegations fit the parameters of the decision the Supreme Court also issued in June,” DerOhannesian said.
Newsweek sought email comment on Wednesday from attorneys for Trump and Meadows and from the office of special counsel Jack Smith.
Greg Germain, a law professor at Syracuse University in New York, told Newsweek he believes that the case against Trump is now dead.
“Jack Smith’s superseding indictment tries its best to put the thread through a tiny hole in the needle left by the Supreme Court for private activities.”
“But I think Smith’s problem is that the Court did not leave a hole in the needle big enough for the thread to go through.”
“While the lower courts may try to interpret their way around the Court’s decision, ultimately I think the election interference case is dead before the Supreme Court.”
“And if Trump wins the election, the Court’s opinion leaves little doubt that he could pardon himself or appoint people to the justice department who will dismiss the case,” he said.