Department of Justice's (DOJ) special counsel Jack Smith can still help move Donald Trump's federal election interference case along by amending the former president's indictment after a U.S. Supreme Court setback, former U.S. attorney Barbara McQuade said on MSNBC on Saturday.
In a 6-3 decision on Monday, the Court ruled that former presidents have immunity from criminal prosecution for official acts, but not for unofficial acts. The decision came more than nine weeks after Trump, the presumed 2024 GOP presidential nominee, brought his presidential immunity case before the justices.
McQuade, a former U.S. attorney for the Eastern District of Michigan who is also a legal analyst for MSNBC, told the hosts of The Weekend on Saturday morning that she is unsure if Smith will complete his case against Trump before this year's election.
"It is not just the defendant, it is also the public that has a right to a speedy trial," she said. "And so, I think the more progress [Smith] can make before a [potential] president-elect Donald Trump goes into office, the more he can do at the other end. Certainly, the things that have been deemed official acts, such as Donald Trump's interaction with the Justice Department are going to go by the wayside. Jack Smith has the option of amending the indictment."
McQuade was referring to when Trump allegedly pushed his DOJ officials to conduct investigations into his 2020 election fraud claims, despite there being no evidence of such claims.
The legal analyst continued: "You don't have to go back to a grand jury to remove things from an indictment where they already found probable cause. So, he can pare this down to just those acts he believes are [un]official acts. Certainly, it will be litigated, but the public will have an opportunity to see what the unofficial acts were: organizing false slates of electors, pressuring state officials to flip the outcome of the election and exploiting the chaos at the Capitol on January 6 to try to press legislators to delay the certification."
In the aftermath of his 2020 election loss, Trump went through the court system, which rejected his cases to overturn the results. The former president also allegedly tried to change the results of the election through illegal means. In Georgia, Trump is currently facing charges, along with other co-defendants, for allegedly conspiring to overturn the state's election results after Joe Biden's razor thin win among voters in the state. He has pleaded not guilty to all charges and claims the case is politically motivated.
McQuade told Newsweek via email on Saturday afternoon that if Smith amends the indictment, "The next step would be for Judge [Tanya] Chutkan to decide whether the remaining charges may go forward in light of the Supreme Court's immunity decision. If she upholds the charges, Trump no doubt would file an interlocutory appeal to both the DC Circuit Court of Appeals and then the Supreme Court.
"Even if both courts were to affirm Judge Chutkan's ruling, it seems unlikely that a trial could begin before the election or inauguration. If Trump is elected, he will likely direct his Attorney General to dismiss the case. If he is not elected, then the trial could proceed on the unofficial acts."
Newsweek has reached out to Trump's spokesperson Steven Cheung via email for comment. It also reached out to the DOJ via online form for comment.
In an attempt to get Smith's case against Trump thrown out, the former president's legal team argued before the Supreme Court that he is immune from prosecution because his alleged actions surrounding the U.S. Capitol riot on January 6, 2021, were protected under presidential immunity.
On that fateful day, a violent mob of Trump supporters stormed the U.S. Capitol building in Washington, D.C., in a failed attempt to stop Congress from certifying Biden's 2020 election victory following unfound claims from Trump that the election was stolen via widespread voter fraud.
In August 2023, Trump was indicted on four felony counts in a case brought on by Smith: Conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. He has pleaded not guilty to all charges and, again, claims the case is politically motivated against him.
Update 7/6/24, 3:14 p.m. ET: This article has been updated with original comment from McQuade.
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