A former Justice Department official said Wednesday that special counsel Jack Smith may face a difficult obstacle with his Tuesday superseding indictment of former President Donald Trump.
The new indictment includes the identical four conspiracy and obstruction charges as the original and was submitted in light of the Supreme Court’s July presidential immunity ruling finding presidents possess immunity from prosecution for official acts they take while in office. Former Chief of the Justice Department’s Organized Crime and Gang Section Jim Trusty, said on “CNN News Central” that Smith is trying to steer clear of violating the presidential immunity ruling but could misjudge which acts Judge Tanya Chutkan will deem protected, potentially necessitating another indictment process. (RELATED: Jack Smith Urges Appeals Court To Revive Trump Docs Case, Defends His Special Counsel Position)
WATCH:
Attorney Tells CNN There’s ‘Huge Land Mine’ Jack Smith Could Be Stepping On With New Trump Indictment pic.twitter.com/3lrzGOwu06
— Daily Caller (@DailyCaller) August 28, 2024
“It’s interesting, it’s kind of aggressively being defensive. It’s paring back the indictment to try to anticipate how the judge would rule on this official acts quandary that he finds himself in after the Supreme Court case on immunity, that basically says personal acts are prosecutable, but official acts are not,” Trusty said. “So he’s anticipating that, but it’s really interesting because the opinion says, not just that immunized information is not properly before the court at trial, but that it contaminates the grand jury process. If you include that information in pursuing an indictment, that’s a huge land mine.”
“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, like in other words, if he says, ‘oh, the president was consulting Mike Pence as president of the Senate, not as vice president,’ which is part of this new indictment, then if he gets it wrong once, he’s got the same problem,” he added. “He’s got to go back to the grand jury, re-indict for the third time based on this ruling coming from the Supreme Court. So it’s interesting, it’s taking the initiative, but it doesn’t necessarily make it a bulletproof indictment.”
The charges against Trump are one count of conspiracy to defraud the U.S., one count of conspiracy to obstruct an official proceeding, one count of obstruction of and attempt to obstruct an official proceeding, along with one count of conspiracy against rights. Trump was originally indicted on the same four charges in August 2023.
The new indictment was cut from 45 pages to 36, and it omits allegations pertaining to Trump’s “attempt to leverage the Justice Department” and modifies language in certain sections to emphasize the former president was acting outside his official capacity.
Smith recently asked Chutkan to postpone the case because the government was still assessing the effect of the presidential immunity ruling. Chutkan agreed to delay a hearing slated for Aug. 16 to Sept. 5 and modify deadlines for the prosecution and defense to submit proposed pre-trial schedules.
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