Jack Smith must now make 'strategic choice' on Trump case with 'major consequences'

During Thursday's oral arguments concerning former President Donald Trump's claim of total criminal immunity, the conservative majority on the Supreme Court of the United States (SCOTUS) indicated warmth toward Trump's position. One columnist recently wrote that if Department of Justice special counsel Jack Smith hopes to try the former president before the election, he may have to put some elements of his indictment on the chopping block.

In a Saturday column for Bloomberg, Harvard University law professor Noah Feldman wrote that SCOTUS may very well hand Trump a victory in one of two ways: Either they kick certain legal questions back to the lower courts and effectively ensure further delays that will push the trial back to the election, or a majority of justices could rule that Trump is indeed immune from criminal prosecution for acts committed as president — effectively scuttling Smith's four-count indictment.

Feldman observed that during oral arguments, Trump-appointed Justice Brett Kavanaugh posited that if the Court agreed that Trump had some level of immunity for official acts, U.S. District Court Judge Tanya Chutkan may be compelled to rule on what constitutes private acts versus official acts.

READ MORE: Ex-federal judge 'profoundly disturbed' by SCOTUS entertaining Trump's total immunity claim

"[I]f Kavanaugh prevails, Jack Smith may well have a strategic choice to make with major consequences for the timing of the trial," Feldman wrote. "Drop some of the charges and proceed; or stick to his guns and risk having no trial at all."

Additionally, Justice Amy Coney Barrett — who was also appointed by Trump — appeared to recommend to the prosecution that it revise its case against Trump to specify acts committed in a private capacity. Feldman wrote that Barrett "walked through the relevant charges one by one, each time getting Trump’s lawyer to admit that the conduct she was asking about was private, not official."

"She pointed to Trump using a private attorney 'to spread knowingly false claims of election fraud,'" Feldman recounted. "She quoted the indictment saying that Trump 'conspired with another private attorney' on false allegations about the election. Finally, she referred to 'three private actors, two attorneys … and a political consultant [who] helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding,' as directed by Trump."

"Barrett was effectively saying that the prosecution could go forward immediately (after the Supreme Court decides the case) provided that Smith follows her roadmap and drops elements of the criminal charges that are arguably official, like Trump deliberating with Department of Justice officials about who would be the next attorney general," Feldman added.

READ MORE: Chutkan slams Trump in latest ruling rejecting immunity argument: No 'divine right of kings'

Last year, Smith indicted the 45th president of the United States on four federal felony charges: Conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights. As Axios reported at the time, Smith's DC indictment came on the heels of Manhattan District Attorney Alvin Bragg's indictment for alleged cover-up of hush money payments allegedly made in the furtherance of his political campaign.

Smith was originally scheduled to go first in prosecuting Trump, with Judge Chutkan scheduling a trial date of March 4. However, Trump's appeal of Chutkan's immunity ruling — which was upheld by the DC Circuit Court of Appeals in February — meant that a March trial date was no longer feasible. And until SCOTUS issues a final ruling on the immunity question, Chutkan can't schedule a new date.

The Supreme Court technically can rule on the issue at any time, though justices have until the end of the term in June to publish their final decision. Chutkan has said that she would give each side between two and three months to prepare for a trial, meaning that if the DC election interference trial were to take place before the election, it would likely not happen until September.

Click here to read Feldman's column in full (subscription required).

READ MORE: Judge Tanya Chutkan strikes Trump's March 4 election interference trial date from calendar