Speaking back in late August, a former high-level Department of Justice (DOJ) official explained how there is a massive “land mine” in Special Counsel Jack Smith’s case against former President Donald Trump that will likely blow up in Jack Smith’s face given the behavior so far of Washington, D.C. federal Judge Tanya Chutkan.
That former DOJ official is Jim Trusty, who formerly served as the chief of the DOJ’s arm to combat organized crime and gangs. He, referencing the Supreme Court ruling on official acts that, at the time, was recent, noted that “immunized” evidence can potentially taint a jury’s perception of a defendant, thus torpedoing the case because of how it taints the jury.
That, in turn, is an issue because of how both lawyers for the former president and the judge herself, Judge Tanya Chutkan, have outlined evidence brought by Jack Smith and his team that should have been inadmissible given the ruling on official acts by SCOTUS, meaning that it could have tainted the jury’s perception of the case.
Speaking about the SCOTUS opinion on “official acts” immunity, and how it relates to jury pools, Mr. Trusty said, “The opinion says not just that immunized information is not proper before the court at trial, but that it contaminates the grand jury process if you include that information in pursuing an indictment.”
What that means, in effect, is that in disclosing evidence against the former president hat might have been inadmissible given its being immunized under the “official acts” ruling, Jack Smith could have prejudiced the jury in a way that makes a fair trial impossible, and thus torpedoes the case. It remains to be seen if the court finds as much, but the potential of it is the landmine about which Trusty was warning.
Mr. Trusty said, explaining as much, that the problem is that there are many acts Smith wants to bring up, and documents surrounding them, that could be inadmissible given their being related to the “official acts.” He said, “That’s a huge landmine. He’s trying to get in front of it before Judge Chutkan has to rule on all of these acts to decide which stuff is fair game or which stuff isn’t.”
Continuing, and noting how it could be a big problem and time-shredder for Smith, he said, “But the problem is, if he guesses wrong in one instance – if he says ‘Oh, the president was consulting Mike Pence, the president of the Senate, not the vice president’ as part of this new indictment – then if he gets it wrong once, he’s got the same problem. He’s gotta go back to the grand jury, re-indict for the third time, based on this ruling from the Supreme Court.”
Further, Mr. Trusty noted that the governing document above all others, our Constitution, seems to indicate that this is the sort of thing that should generally be prevented. He said, “The Constitution seems to suggest… that we don’t want to have our presidents hobbled with constant fear or prosecution by state and federal prosecutors.”
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