Special Counsel Jack Smith has refocused his prosecution of former President Donald Trump, with a new angle on the case that could have major implications for both the legal landscape and the political climate. But is this strategy a smart move, especially after the recent Supreme Court decision on immunity that would shield some executive actions?
From a legal standpoint, prosecuting a former president in federal court is uncharted territory. Smith’s decision to pivot his strategy may seem bold, but it could be a serious legal misstep. The recent Supreme Court ruling on immunity has sent shockwaves through the legal community, essentially reaffirming that certain actions taken by government officials, even those perceived as questionable, may be protected under what this incarnation of the court could see as a broad umbrella of official presidential duties. This decision is complicating efforts to hold Trump accountable in ways that prosecutors, including Smith, might not have anticipated—hence the revised indictment that tries to obviate the brick wall ahead of the prosecution.
Smith’s challenge is to thread the needle between proving criminal intent and the protections offered by presidential immunity. A great analogy for the beginning of the NFL season is throwing a 60-yard touchdown pass over and between three defenders—not impossible, just really, really hard,
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The Supreme Court has made it clear that actions within the scope of a president’s official duties are immune from legal liability, which could be a significant hurdle. For Smith, it’s about proving that Trump’s actions went far beyond the bounds of normal presidential behavior, and crossed into outright criminal conduct—no easy task given the complex nature of presidential powers and the surges that some presidents have successfully engineered.
Smith is betting on the idea that he can convince a jury—and the broader public—that Trump’s actions were not only morally wrong but legally indefensible. The former is going to be extremely hard; the latter perhaps close to impossible given our political landscape. So, the prosecution’s case is going to have to be airtight to counter any claims of immunity effectively. If it falters, the repercussions could be far-reaching, setting a precedent that future presidents could exploit. The legal stakes are enormous, and Smith’s strategy must be surgically precise to avoid unintended consequences.
Politically, Smith’s prosecution of Trump has the potential to be both a lightning rod and a landmine. On one hand, it could serve as a powerful statement that no one, not even a former president, is above the law. This message resonates strongly with elements of a public weary of perceived injustices and eager to see accountability at the highest levels of government. However, it’s also a move that risks deepening the seemingly un-deepenable partisan divide, further politicizing one of the most politically explosive issues of recent times.
Trump’s base has consistently rallied around him, viewing prosecutions as politically motivated witch hunts. By refocusing his prosecution, Smith will almost surely energize Trump’s supporters, who see this as yet another example of the establishment targeting their champion. Politically, this is a dangerous backfire, potentially boosting Trump’s standing among his core supporters and even winning over undecided voters who view the prosecution as legal overreach.
What’s worse is that the timing of Smith’s refocused prosecution couldn’t be more politically charged. With the 2024 election looming, the optics of prosecuting Trump raise questions about American fairness and impartiality. It’s a delicate balance: pursue justice, but don’t appear to be influencing an election—either in real time or if Trump loses. Trump is already pushing the narrative that his political opponents are weaponizing the legal system against him, and it’s one that resonates with a sizable portion of the electorate.
So, realistically, is the Supreme Court’s recent decision on immunity a direct shield for Trump from all legal accountability? No, but it adds a layer of complexity that Smith must navigate better than he has been. The ruling could be interpreted as reinforcing the idea that certain actions taken in the name of official duty, even those that push the boundaries, are not easily prosecutable. For Trump, this is a potential lifeline—a legal argument that could derail Smith’s efforts if not meticulously countered.
Smith’s task is to distinguish Trump’s actions as criminal, rather than protected under the scope of presidential immunity. Again, if Smith can convincingly argue that Trump’s conduct was outside the bounds of any legitimate presidential duty, the case could proceed unscathed. However, if the court buys into the immunity argument, the prosecution could falter, and Trump could walk away emboldened.
The bottom line is that Jack Smith’s refocused prosecution of Trump is surely a high-stakes gamble that requires impeccable strategy and evidence. Politically, it’s a double-edged sword that could either cement Trump’s legal accountability or bolster his narrative as a persecuted outsider. But Smith’s decision to press forward isn’t just about one man: it’s about the broader principle of accountability to the rule of law. While the Supreme Court’s immunity decision complicates matters, it doesn’t necessarily close the door on holding Trump accountable. It simply raises the bar—and through the revised indictment, Smith is sending the message that he’s ready to meet that challenge.
Whether or not this strategy pays off will depend on more than just the strength of the evidence; it will hinge on public perception, judicial interpretation, and the ever-evolving landscape of American politics. But one thing is clear: the pursuit of justice, especially at this level, is never without risk. And for Smith, the stakes couldn’t be higher.
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief strategy officer forAmplify. He has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Newsweek, Fast Company, Fortune, Forbes, CBS News, CNBC, USA Today, ESPN, Abogados, Today’s Esquire, TechCrunch, The Hill, BuzzFeed, Venture Beat, The Independent, Fortune China, Yahoo!,ABA Journal, Law.com, The Boston Globe, and many other leading publications across the globe.
The views expressed in this article are the writer’s own.