Jack Smith changes strategy in Trump criminal trials

On Tuesday, Smith filed a supplemental 36-page indictment in Washington, DC, in the 2020 election case. It is based on a narrower set of alleged criminal acts after the Supreme Court ruled this summer that Trump had immunity from prosecution for some of the conduct contained in Smith's original 45-page indictment.

Former federal prosecutor Neama Rahmani told the Washington Examiner Smith's amended indictment is the latest in a series of missteps by the prosecutor in his quest to convict Trump. He called the new indictment “a last-ditch effort to avoid a motion by defense lawyers to dismiss the Washington case.”

“Smith filed the case regarding the classified documents in Florida rather than Washington, DC, to avoid a motion to change venue,” Rahmani said, noting later that this was “a mistake” because a Trump-appointed judge more friendly to him was chosen for the case.

Ohio-based attorney Danny Karon compared the new indictment to a “mid-term amendment” to the original indictment, noting that with the election looming, “the decision on the significance of this second indictment will be up to the voters.”

“The case would certainly not go to trial before the election, and if Trump wins the presidency, he will control the Justice Department, which means he will drop the case,” Karon added.

The special counsel upheld the four charges against Trump, including conspiracy to defraud the United States, but limited the evidence in the indictment and even removed an unnamed individual, former Justice Department official Jeff Clark, from the list of unindicted co-conspirators.

“Smith had to walk a fine line in asking for a new indictment, presenting the case to a new grand jury and presenting the indictment with a little less teeth than the original indictment as he tried to abide by the Supreme Court's decision and still bring charges,” Karon said.

This week, Smith also filed his first argumentative brief challenging U.S. District Judge Aileen Cannon's decision to dismiss the separate classified documents case in Florida, seeking to persuade a federal appeals court to overturn the ruling that the special counsel was improperly appointed.

Because of appeals and delays, neither the 2020 election case nor the secret documents case were expected to go to jury trials this fall even before Smith filed his supplemental indictment on Tuesday.

Smith, who once insisted on holding the trials before the election, is now forced to shift his strategy to one that takes into account the outcome of the November 5 election, even in the event that Trump fails to recapture the White House.

The change in strategy became even clearer when the New York Times reported last week that prosecutors will not seek a “mini-trial” in Trump's case in Washington. In fact, some legal experts had suggested earlier this summer that Chief U.S. District Judge Tanya Chutkan might call witnesses to testify on certain serious offenses in the indictment before the actual trial, but sources familiar with Smith's plans have put an end to that speculation.

Chutkan is scheduled to have a status conference on September 5 to discuss issues related to the case, but it is unclear how the new charges will affect the topics discussed at the conference.

But what is clear right now is that Smith is keen to keep the litigation moving at a steady pace, in part because trying to open a trial before the election is futile and perhaps because of the efforts of the entire Justice Department to find a unified and consistent approach to the new immunity precedent.

Kevin McMunigal, a former assistant U.S. attorney in California, told the Washington Examiner If a landmark and important court decision ever came about during his time in the Golden State office, “the people of Main Justice were in close contact with the trial lawyers to prevent them from taking positions that would conflict with them.”

In other words, the Justice Department is interested in “keeping all the troops in position and keeping everything in order” when it comes to interpreting new precedents, McMunigal said. After all, prosecutors want their charges to withstand the judge's ruling and ultimately lead to a conviction.

The next big test for Smith's strategy could come if he continues to fight Cannon's decision to rule that he was improperly appointed by Attorney General Merrick Garland under the Appointments Clause.

Trump has not yet filed a motion to dismiss Smith in the Washington case, and depending on how Smith's appeal of Cannon's decision turns out, he could create a disagreement in the appeals court over the constitutionality of Smith's appointment. But experts like McMunigal said he would be surprised if the U.S. Court of Appeals for the 11th Circuit upheld Cannon's decision.

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Meanwhile, the former president has maintained his public hostility toward the special counsel for keeping the case on track as Election Day approaches, while polls show his opponent, Vice President Kamala Harris, narrowing the gap in key states such as Arizona, Georgia, Nevada and North Carolina.

“This is simply an attempt to influence the election and distract the American people from the disasters Kamala Harris has inflicted on our country, such as the invasion of the border, migrant crime, runaway inflation, the threat of World War III, and more,” Trump posted on Truth Social on Tuesday night.