Special counsel Jack Smith made a risky gamble in his new indictment against Donald Trump, according to one of the former president's defense attorneys.
The special counsel trimmed down the case against Trump and a grand jury still indicted him on all four core charges in the election interference case, and his former defense attorney Jim Trusty told CNN that Smith reworked the case to exclude testimony from a former Department of Justice official in the wake of the Supreme Court's immunity ruling.
"It's kind of a aggressively being defensive," said Trusty, who briefly represented Trump in the Mar-a-Lago documents case and a defamation suit against CNN. "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. So he's anticipating that, but it's really interesting because the opinion says not just 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."
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Smith excluded testimony from former DOJ official Jeffrey Clark, identifiable as alleged "co-conspirator No. 4" in the initial indictment, because he seemed to know Chutkan would exclude those portions of the case as official acts, but Trusty said the special counsel made a risky bet by identifying Mike Pence only by his ceremonial role on Jan. 6, 2021, as president of the Senate.
"That's a huge land mine," Trusty said. "He's trying to get in front of it before judge [Tanya] 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's got to go back to the grand jury, re-indict for the third time based on this ruling coming from the Supreme Court," he added. "So it's interesting, it's taking the initiative, but it doesn't necessarily make it a bulletproof indictment."
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