A former federal prosecutor said Wednesday that special counsel Jack Smith is trying to drive a critical one-word distinction in a sweeping new filing to federal Judge Tanya Chutkan in his bid to keep the election conspiracy indictment alive against former President Donald Trump.
The key point, Elie Honig explained to CNN's Jake Tapper, is that Smith wants to impress upon the judge he is compliant with the Supreme Court's recent, controversial ruling giving the former president a presumption of immunity for official acts — by outlining how the acts under indictment are private.
"What is the goal of Jack Smith here?" asked Tapper.
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"Well, Jake, Jack Smith is trying to salvage his indictment, as any prosecutor would and should do," said Honig.
"And just to refresh everyone's memory, Jack Smith brought his initial indictment back last summer of 2023," Honig explained. "A few months ago, the Supreme Court said much of what's in that indictment is immune. Donald Trump has immunity and it's out of the case. Then Jack Smith came back with a narrowed-down indictment. And in this filing, Jack Smith is arguing to the court, what's left in my indictment is all kosher, so to speak. It's all good to go for trial."
Ultimately, he added, "the key dividing line there is, if it's an official act, then Donald Trump is immune and it's out of the case. But if it's private, then it's not an official act and it can stay in the case. And that, Jake, is the number one word that you see. The number one theme that you see repeated throughout this filing by Jack Smith. Private. He argues all of this conduct was private. It was criminal, and it should stay in the case, Jack Smith argues."
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