Special counsel Jack Smith’s decision to retain allegations concerning Donald Trump’s communications with Vice President Mike Pence in the federal election obstruction case may backfire, according to legal experts.

A recent U.S. Supreme Court ruling on presidential immunity could present a significant hurdle for Smith’s prosecution of Trump for his alleged role in the events of Jan. 6, as Newsweek reports.

Smith’s case against Trump now faces legal complications due to a ruling that grants presumptive immunity for official presidential acts.

The July decision from the Supreme Court clarified that actions carried out by a sitting president during their official duties are presumed immune, barring clear evidence otherwise.

Supreme Court Decision Shapes the Case

In light of the Supreme Court’s ruling, Smith adjusted his indictment, removing allegations related to Trump’s attempts to pressure the Department of Justice regarding election fraud claims. However, he chose to keep accusations involving Trump’s conversations with Pence on January 6.

Legal analyst Elie Honig believes this decision could be a miscalculation. The Supreme Court ruling cited presidential interactions with the vice president as part of the duties that could be protected by immunity.

This raises the possibility that Trump’s communications with Pence could also fall under protected presidential actions.

Potential Blow to Prosecution

Honig has characterized Smith’s move as a “reckless gamble,” suggesting that it could severely weaken the prosecution’s case.

He argues that by not removing the Pence-related allegations, Smith risks having the entire case dismissed. “It would've been safest for Smith to remove the Pence allegations from his new indictment,” Honig stated, referring to the possibility that the Supreme Court could ultimately decide that Trump’s actions were protected.

Judge Tanya Chutkan, who is presiding over the case, is currently tasked with determining whether the Pence allegations can remain. Although Trump’s legal team, led by attorney John Lauro, has pushed for dismissal based on the Supreme Court’s ruling, Chutkan has not yet made a final decision. “I would disagree with you, Mr. Lauro. They sent that to me to figure out,” Chutkan remarked during a recent hearing.

Appeal Could Take the Case to the Supreme Court

Even if Judge Chutkan allows the Pence allegations to stay in the case, Trump has the right to appeal the decision. This could send the case back to the Supreme Court, where the justices might revisit the question of immunity in regard to Trump’s communications with Pence.

Should the Supreme Court ultimately rule that these conversations are immune, it could deal a devastating blow to Smith’s case. Honig suggests that without the Pence allegations, Smith may struggle to present a coherent narrative to jurors. “Smith loses another pillar of his indictment, and it's not clear he can tell his story in a coherent manner without the Pence angle,” he commented.

Impact of Losing Key Allegations

The potential removal of the Pence allegations would likely force Smith to reconsider his approach. If the allegations are dismissed, Smith might need to return to a grand jury to issue a new, third superseding indictment, further delaying the case.

Moreover, the dismissal of such critical evidence could embolden Trump’s defense. Lauro has argued that if the Pence-related claims are removed, the case should be dismissed altogether, as jurors would have been exposed to evidence the Supreme Court deemed inadmissible.

Legal Experts Criticize Smith’s Strategy

Honig has been particularly vocal in his criticism of Smith’s strategy. He has repeatedly argued that Smith’s decision to keep the Pence allegations in the case is a high-risk move that could end up undermining the entire prosecution. “Smith might wave the white flag and dump the case altogether,” Honig warned, suggesting that the loss of the Pence allegations could prompt Smith to abandon the case.

Smith, however, remains committed to pressing forward, despite the challenges. The special counsel has made it clear that he believes Trump’s actions on January 6 crossed the line, particularly in his communications with Pence. However, the Supreme Court’s ruling casts doubt on whether those actions can legally be considered outside the scope of Trump’s official duties as president.

Potential Outcomes for the Case

If the case continues without the Pence allegations, it could significantly weaken Smith’s overall argument. Legal experts like Honig caution that losing the Pence element may leave Smith with little choice but to drop the case or risk losing in court. “It would be just about all over for the prosecution,” Honig stated, emphasizing the potential implications of the Supreme Court’s involvement.

As the case develops, much will depend on Judge Chutkan’s ruling and the potential for appeals. With Trump’s legal team poised to fight the inclusion of the Pence allegations at every turn, the case could ultimately end up in the Supreme Court once again. Whether Smith’s gamble will pay off remains to be seen, but the stakes for both sides could not be higher.