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,

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.

Judge Aileen M. Cannon has shown bias in handling criminal charges against former President Donald Trump and should be reversed and removed from the case to “preserve the appearance of justice,” a public interest group argued in a legal filing on Tuesday.

The brief filed by Citizens for Responsibility and Ethics in Washington and joined by a retired federal judge and two constitutional lawyers is a direct legal assault on Cannon’s decision to throw out special counsel Jack Smith’s prosecution of Trump for alleged mishandling of classified documents. CREW is a nonpartisan open-government advocacy group that has been at the vanguard of fighting Trump in various legal battles.

The brief argues that Cannon’s decision “hinged on ignoring the plain text of four federal statutes,” dismissing “a landmark Supreme Court opinion confirming the Attorney General’s power to appoint a Special Counsel.”

CREW writes that “a reasonable member of the public could conclude, as many have, that the dismissal was the culmination of Judge Cannon’s many efforts to undermine and derail the prosecution of this case.”

In a stunning July 15 ruling, Cannon wrote that Attorney General Merrick Garland exceeded his authority by appointing Smith as special counsel without congressional approval and violated the Constitution’s separation of powers. “The Special Counsel’s position effectively usurps that important legislative authority,” she said. Critics say that decision was incorrect and disregarded years of legal precedent, including a landmark Supreme Court ruling.

Smith appealed her decision to the 11th U.S. Circuit Court of Appeals, but he stopped short of asking that Cannon be removed if the case is remanded.

Nancy Gertner, a retired federal judge from Massachusetts, was one of several parties who joined CREW as a friend of the court. She told ProPublica she decided after analyzing Cannon’s decision that it could not be explained by her caseload or inexperience.

“It was clearly bias,” said Gertner, who is a senior lecturer at Harvard Law School, citing repeated rulings from Cannon that were favorable to Trump’s attorneys. “And with this Supreme Court, there’s no ceiling. All precedents are up for grabs.”

Federal statutes governing reassignment of cases give appellate courts authority to ask the chief judge in a district to move the case if the original judge “has engaged in conduct that gives rise to the appearance of impropriety or a lack of impartiality.” The brief cites several precedents, but reassignment based on judicial bias is uncommon.

Cannon, 43, was appointed to the Fort Pierce courthouse in the Southern District of Florida by Trump in November 2020, after he lost the election to Joe Biden. She was randomly assigned to the Trump document-handling case in 2022.

In May, the circuit’s Judicial Council dismissed several misconduct complaints against Cannon, alleging that she deliberately slowed down the Trump case and that she should have recused herself from the case as a Trump appointee. The panel said it would not discipline a judge unless it found a pattern of slowness in numerous cases and did not require her recusal based on her appointment. At the time, Chief Judge William H. Pryor Jr. cut off what he called an orchestrated campaign that brought in more than 1,000 letters seeking her removal.

Cannon’s sudden decision to throw out Smith’s case came on the opening day of the Republican National Convention, and Trump praised her in his acceptance speech as a “highly respected federal judge” willing to stand up against what he has called Smith’s “witch hunts.”

Represented by San Francisco lawyer Steven A. Hirsch of Keker, Van Nest & Peters, CREW described Cannon’s decision to end the case as “the culmination of many efforts to undermine and derail the prosecution.” It cited a series of unprecedented rulings over many months in which Cannon appeared to create “a parallel legal universe for former presidents” and crossed the line “to active judicial interference and advocacy” for Trump.

CREW criticized Cannon for adopting a lone concurrence from Supreme Court Justice Clarence Thomas in an immunity case against Trump and, shortly afterward, rendering a 93-page opinion that echoed the justice’s position that Smith’s prosecutions violated the Constitution.

CREW details “dramatic and unusual” controversies during Cannon’s case that offer the appeals court “more-than-adequate grounds to reassign the case upon remand.”

The 11th Circuit has taken the unusual step of reversing Cannon twice during the course of the case, including a harsh rebuke in December 2022 of her decision to appoint a special master to screen classified documents.

Cannon approved the appointment of a senior federal judge in New York and various federal consultants to examine materials seized from Mar-a-Lago in Florida. Smith had complained to the appeals court that a special master was unnecessary and slowed down the prosecution.

“If the court reverses Judge Aileen M. Cannon’s ruling in this matter, it will be the third time in under three years that it has had to do so in a seemingly straightforward case about a former president’s unauthorized possession of government documents,” CREW argued.

By suggesting — however temporarily — that he was open to a Florida ballot measure that would guarantee the right to an abortion until the time of fetal viability, Republican presidential nominee Donald Trump has once again played his mostly white evangelical base for suckers. Those white evangelicals helped put him in power in 2016 to accomplish their longstanding goal of overturning Roe v. Wade. Now, those same voters have staked their hopes for a total ban on abortion on Trump winning the 2024 presidential election. But there Trump was last week, telling an NBC News reporter that he thinks Florida’s current law, which bans abortions after six weeks, is too restrictive. But then his evangelical base quickly brought him to heel.

Republican presidential nominee Donald Trump has once again played his white evangelical base for suckers.

“I think six weeks is too short,” Trump said Thursday. “There has to be more time and so I want more weeks. I am going to be voting that there will be more than six weeks.” To be clear, Florida voters won’t have the option of choosing how many weeks a pregnancy can progress before an abortion is illegal. They’ll, again, only be voting on whether or not there’s a right to abortion as long as the fetus isn’t viable.

Trump’s answer that Florida’s abortion law is too restrictive angered his most loyal base. But that’s not all. At a campaign stop in Michigan, Trump not only said that he supports IVF — which some diehard abortion opponents oppose — but that he also wants  the government to pay the cost of such treatments if insurance companies do not.

The outcry was immediate. Lila Rose, an anti-abortion activist, said in a social media post,  “If you don’t stand for pro-life principles, you don’t get pro-life votes.”

Albert Mohler, the president of the Southern Baptist Theological Seminary wrote on X, “Former President Trump now appears determined to undermine his prolife supporters. His criticism of Florida abortion restrictions & his call for government funding of IVF & his recent statement about ‘reproductive rights’ seem almost calculated to alienate pro-life voters.”

Mohler said the election “is shaping up as a catastrophe for the pro-life movement” and that Trump “had better count the cost of abandoning pro-life voters — quickly.”

And Trump quickly backed down. Of course, he said Friday, he supports the six-week abortion ban in Florida.

But that can’t erase the fact that he interjected unease and distrust into his faithful supporters. What’s surprising is that such voters ever had faith and trust in Trump on this issue. He has been all over the place on the topic of abortion for a long time. He told NBC’s “Meet the Press” in 1999 that he was “very pro-choice.” When other Republicans brought up that remark in a 2015 debate, he said he’d “evolved.” In February 2016 he praised Planned Parenthood, but said he’d defund them because they provided abortion care. At a March 2016 MSNBC town hall, he said “there has to be some form of punishment” for women seeking abortions.

Though he’s often taken credit for defeating Roe v. Wade, when Republicans did poorly in the 2022 midterm elections, he wrote on Truth Social, “It was the ‘abortion issue,’ poorly handled by many Republicans, especially those that firmly insisted on No Exceptions, even in the case of Rape, Incest, or Life of the Mother, that lost large numbers of Voters.”  In March, he suggested he’d support a 15-week national abortion ban.

Now he has a dilemma. He knows that the draconian policies of his evangelical base are not popular, which prompted him to say, unconvincingly, that the “Trump administration will be great for women and their reproductive rights.” But he needs those white evangelical voters to stick by his side. Trump’s frenetic shifting on the issue isn’t about a lack of knowledge. It is about desperation.

Trump’s frenetic shifting on the issue isn’t about a lack of knowledge. It is about desperation.

Trump has never been good for women, but the combination of JD Vance harping on childless “cat ladies” and their tag-team attacks on Democratic presidential nominee Kamala Harris has made them and the GOP look like the party of professional women haters.

Trump’s flip-flopping is a sign of his flop sweat. Running against Harris and her running mate, Tim Walz, leaves Trump as the old man with his young even more misogynist sidekick yearning for the days when the little woman was at home, barefoot and pregnant. His campaign can’t strike egalitarian message in part because of who Trump and Vance are, but also because they’re beholden to hard-line Republican evangelical supporters who are very much invested in banning abortion and restricting IVF.

The demise of Roe v. Wade and the subsequent IVF battles have been devastating for women, and the speeches and commercials featuring women who have been rendered infertile or suffered grievous injury because of these draconian laws stand in condemnation of the intentional cruelty of these laws condemning women to pain, suffering, infertility and even death. These testimonies stand in direct contrast to the ways in which Republicans either try to obfuscate what the abortion bans do, or to downplay their effect on women’s access to reproductive care.

The 10 states where abortion rights will be on the ballot in November are a minefield for the Republican Party up and down the ballot. And everything Trump says about the topic leads to another explosion.