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Former U.S. attorney Joyce Vance breaks down the challenges and choices Special Counsel Jack Smith now faces in prosecuting Trump.

What’s Ahead for Jack Smith
by, Joyce Vance

___Different prosecutors may land on different strategies in the same case. But when it comes to the fundamentals, all prosecutors follow the same rules: the Federal Principles of Prosecution. Smith will too.

The principles are guidelines federal prosecutors use to decide whether to bring an indictment. They are part of what is now called the Justice Manual, previously the United States Attorneys’ Manual. Before indicting, a prosecutor must believe she can “obtain” and “sustain” a conviction. In other words, she must believe the evidence is sufficient to obtain a plea or guilty verdict in the trial court and have that verdict sustained on appeal. There are other considerations as well, but this is the threshold requirement.

Here, Trump has already been indicted, but following the Supreme Court’s decision on immunity, Smith’s team may choose to — or be ordered by the court to — alter or delete some of the four crimes Trump is charged with committing, the allegations they make in the indictment to support those crimes, and the evidence they intend to offer at trial to prove them. To proceed, Smith must be satisfied that he will still have sufficient evidence to convict on any charges that survive the Supreme Court’s decision and that he is on sound ground legally so any conviction he obtains can be sustained on appeal. When prosecutors have evidence suppressed or lose legal arguments, they act accordingly and voluntarily dismiss some counts in an indictment or even the entire case where appropriate. In this sense, Smith’s next steps as he recalibrates after the Supreme Court’s decision will be guided by the Principles of Prosecution. And the election interference case will be like any other.

Trump will attempt an interlocutory appeal — that is, an appeal before the trial — of Chutkan’s decisions on this matter, again. As the Supreme Court explained, the entire point of the protection immunity offers is that it prevents the holder of immunity from being tried at all. The benefits of that immunity are lost if a court wrongfully permits a case to go to trial, so a former president asserting the immunity is entitled to take an appeal in advance of trial to resolve the issue. Once Chutkan rules, expect that this case will be off to the Supreme Court again.

...it makes sense for Smith to take the time to build a strong record to support each charge and allegation he believes is made on the basis of unofficial acts or presumptively official acts where he can overcome the presumption of immunity. Insistence on going quickly doesn’t make sense; the case is not going to trial until the appellate courts get at least one more crack at it. Here, getting it right is more important than going fast. Getting it wrong would mean losing any conviction obtained at trial on appeal and it’s not happening before the election in any event.

read more: https://www.brennancenter.org/our-work/analysis-opinion/whats-ahead-jack-smith