Jack Smith has had a tough time prosecuting Donald Trump, especially considering his D.C. election subversion prosecution has been frozen pending Supreme Court action, but a former prosecutor said on Sunday that the special counsel has one more trick up his sleeve.
Trump faces charges in that case related to the Jan. 6, 2021, insurrection, as well as related efforts to allegedly undermine the presidential election in 2020 when Joe Biden beat the former president. With the case tied up, however, analysts have suggested that it won't reach trial before the election.
Former U.S. Attorney Barbara McQuade appeared on MSNBC over the weekend to discuss the pending case.
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The host asked McQuade, "Which way are you expecting them to rule tomorrow? Who then gets to decide which of Trump's actions on January 6 can be subject to criminal prosecution?"
McQuade responds, saying, "Well, that is a line drawing I think we are going to see."
"I don't think it's going to be -- everything is immune or nothing is immune. I think that we will engage in some line drawing. It could be, one argument is, anything that Donald Trump did in his capacity as president is immune, and that which he did in his capacity as a candidate is not immune," she said. "If, for example, that is where they decide to draw the line, they need to have a hearing to go through all of the allegations in the indictment and decide, was Donald Trump acting in his capacity as president when he did this, or is candidate?"
She continues:
"I think much of it is no question as candidate. To me, in my mind, the one area of question is directions to the Justice Department, which, although they may have been abuse of his power, may arguably have been within his power."
Then, she says, the prosecutor could still make one more move:
"Jack Smith has one more card to play, which is to dismiss any allegations that are arguably within the scope of presidential power and proceeding with what is left, which would be a bulk of the indictment," she said. "I think ultimately, this case is going to go to trial and the allegations are going to stay, the indictment is going to be there. The question is, when will that be there?"
