Elie Honig: Jack Smith is Making a Reckless Gamble

Special Counsel Jack Smith continues to plug away at the two cases on his desk involving Donald Trump.

One case is slowly moving forward, while the second case has been stalled after a Trump-appointed judge tossed it.

Elie Honig, a popular legal expert, believes that Smith’s gamble on these cases was a big one that could cost him his career.

Big Gamble

Honig is taking the approach that the Supreme Court decision on presidential immunity could upend the January 6 case against Trump.

Smith recently introduced a superseding indictment to help the judge decide which "unlawful" acts by Donald Trump should be protected against legal threats by being defined as "official" presidential actions.

Honig is leaning into communications between Trump and Pence that day that are part of the evidence being used against Trump.

But, as I have stated before, just because it was a president communicating with a vice president does not necessarily mean it was the act of a president.

Honig stated, "As an example of conduct that falls within this middle ground, the Court cited Trump's interactions with Vice President Mike Pence, including Trump's pressing of Pence to reject electoral votes on January 6. Given the Court's instruction, it would've been safest for Smith to remove the Pence allegations from his new indictment.

"But instead, Smith left the Pence allegations largely intact, tweaked at the margins.

"Even if Judge [Tanya] Chutkan does agree with Smith that the Pence allegations can remain in the case, Trump gets to appeal that determination, before trial. So the Pence question, among others, will likely end up right back at the Supreme Court.”

Honig goes on to explain what happens if the Pence aspect of the case is removed, stating, "Smith loses another pillar of his indictment, and it's not clear he can tell his story in a coherent manner without the Pence angle.

"Even if he wanted to proceed, Smith would have to go back to a new grand jury—for a third time—to obtain yet another, even slimmer superseding indictment.

"At that point, Smith might wave the white flag and dump the case altogether. He might have no other choice.”

I am not a legal expert, but I have talked to numerous attorneys about this specific issue, and not a single one of them believes that any of Trump’s actions that day will be ruled as presidential acts by any court.

However, they have also conceded that a real argument can be made that Trump was fighting for election integrity, not his campaign.

The answer will come soon enough because this case is surely headed back to the Supreme Court in the near future.