Special Counsel Jack Smith “can still hurt” former President Donald Trump in his election interference case despite setbacks, according to a legal expert.
In a blog post on the CAFE.com website, senior CNN legal analyst Elie Honig wrote that following the Supreme Court’s July ruling that former presidents have substantial immunity from prosecution for “official acts,” crucial parts of Smith’s case against Trump for alleged election interference could be excluded from being used in court, including the former president’s alleged “pressure campaign” aimed at Mike Pence and his “effort to coerce the Justice Department.”
He added that delays in the case also mean that “there’s a zero-point-zero percent chance this trial happens before the November 2024 election.”
However, despite these setbacks, Smith may push for an evidentiary hearing, according to Honig.
“Judge Chutkan still can—and I believe will—order an evidentiary hearing to enable Smith to air some of his most explosive evidence, before voters head to the polls,” he wrote.
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An evidentiary hearing is a court proceeding that involves witnesses giving testimony under oath before a judge and in some cases, presenting documentary evidence. The hearing is held to assess the admissibility, credibility, reliability, and relevance of evidence. Unlike a trial, where guilt or innocence is determined, an evidentiary hearing focuses on the rules of evidence and legal arguments.
In such a hearing, Honig wrote, the judge could permit Smith to call live witnesses to the stand to discuss what their trial evidence would be.
In this case, “we could see Trump’s former chief of staff, Mark Meadows, take the stand to give his first-ever public accounting of what his boss did (and didn’t do) before and on January 6. And Mike Pence could testify about how Trump begged and eventually threatened him in an effort to get him to throw the election—and how, on January 6, he had to run for his life to avoid the frothing mob,” Honig explained.
He added that although an evidentiary hearing “won’t hit nearly as hard as a jury trial and verdict,” it could still hurt Trump in the polls.
“But, really, imagine: Trump’s own former chief of staff and VP taking the stand in, say, September of an election year, to describe firsthand how their former boss trampled on the Constitution to try to steal an election. Even if we all mostly know the story by now, that simply can’t be good for Trump at the polls, just weeks before voters cast their ballots,” Honig said.
“But if Smith’s goal is to expose Trump’s conduct to the American public before the election—and let’s face it, that’s plainly been a driving force for the special counsel all along, despite his refusal to acknowledge it—he’ll still have a backdoor path to partial success,” he continued.
Trump has denied all charges against him. He is accused by Smith of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding and conspiracy against rights in connection with an alleged pressure campaign against Mike Pence and state officials to reverse the 2020 election results.
Lawyers for Trump appealed the indictment, claiming the former president was acting within his official duties as president and therefore should be immune from criminal prosecution.
In July, the Supreme Court ruled that former presidents have some immunity from criminal prosecution for “official” actions, meaning that Trump could dodge some charges for his alleged plot to overturn the result of the 2020 election.
“In dividing official from unofficial conduct, courts may not inquire into the President’s motives,” the ruling read.
It is unclear if Trump could go on trial during his term if he is elected as president in November.
If elected, he would be the first person convicted of a felony to serve as U.S. president after he was found guilty in a hush money case earlier this year.
Trump is currently polling marginally below his opponent Kamala Harris, with FiveThirtyEight’s poll tracker putting him 2.6 points below the vice president, on 43.7 percent to her 46.3 percent.
