Jack Smith faces "painstaking process" to keep Trump indictment alive
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Anti-Trump demonstrators rally at the Supreme Court on July 1. Photo: Amanda Andrade-Rhoades/The Washington Post via Getty Images
Special counsel Jack Smith and former President Trump's lawyers will enter a war of attrition with evidence in the Jan. 6 case to determine what is considered an official presidential act.
Why it matters: The Supreme Court ruled that Trump has immunity for official acts but didn't conclude which Jan. 6-related communications fall within that scope, leaving in district court's purview what former federal prosecutors told Axios is a granular and "painstaking process."
What they're saying: Chris Mattei, a former federal prosecutor for the District of Connecticut, said the Monday SCOTUS ruling was "like a sword with two very sharp blades."
- He listed: "One that carves out a huge amount of conduct from being prosecutable — and another which then slashes away at the type of evidence that the government could use to prosecute that small band of conduct that can now be called unofficial conduct."
Catch up quick: The Supreme Court determined the former president is entitled to "absolute immunity" for actions within his conclusive authority; "presumptive" immunity for other official acts; and "no immunity" for unofficial acts."
- Some of the allegations against Trump "present more difficult questions" than others in terms of whether they involved duties that fell within his official scope as president, the Supreme Court said in a majority opinion.
- Official actions can't be used as evidence in demonstrating criminality in unofficial actions, the court determined.
Zoom in: Shan Wu, a former federal prosecutor in Washington, D.C., called that "a very confusing part of the opinion."
- The indictment includes Trump's communications with Justice Department officials, White House officials, state officials, private parties and the general public.
- "99.9% of it has been sent back to make more findings," Wu said.
- The court could hold hearings like "mini trials" on whether certain evidence should be allowed, he added.
Between the lines: Neama Rahmani, a former federal prosecutor in the Southern District of California, said the prosecution will seek to prove that Trump's communications such as those with state officials and former Vice President Pence constitute campaigning.
- Trump's lawyers, though, are expected to argue that those communications were part of the former president's oversight of the election.
- "Is this campaigning or is this him auditing the election as part of his duties as Commander in Chief?" Rahmani asked. "That's dubious, in my opinion, but that would be the argument."
Go deeper: Behind the Curtain: Trump's imperial presidency in waiting
