While the U.S. Supreme Court seems unlikely to accept Donald Trump’s claims of absolute immunity, many expect the justices to effectively delay special counsel Jack Smith's election interference case against the former president. But former federal prosecutor Barbara McQuade said Smith may still have "one trick up his sleeve" to bring the case to trial before the November election.
At oral arguments this week, Trump's legal team argued that the former president cannot be held criminally liable for what they described as "official acts" taken while president. Though even some conservative justices seemed skeptical, many legal experts predicted the court would throw the question back to lower courts of what actually makes an action "official," pushing back the start of any trial.
McQuade told MSNBC that several justices appear to think “perhaps there is some presidential immunity for some official acts, but that the acts alleged in this indictment are not those acts.” She pointed to Chief Justice John Roberts as one member of the court who appears to favor a delay, requiring a lower court to decide whether Trump was carrying out official business when he tried to overturn the 2020 election — and where to draw the line between private acts and a president's duties.
“The example Chief Justice Roberts used was bribery," McQuade noted. "It might be an 'official act' to appoint an ambassador, but if you do that in exchange for money, a bribe, that could still be a crime."
But McQuade argued there's a way for Smith to avoid a costly delay as those questions are addressed.
"At the end of the day, it seems necessary to probably sort out what is and is not an 'official act' here," she said. "But Jack Smith still has one trick up his sleeve, I think, which is to pare down the indictment and use only the things that are clearly private acts here."
Private acts could include things Trump clearly did as a "candidate" trying to overturn the election, such as consulting with private attorneys on a scheme to promote fake electors. Trump's attempt to get his vice president, Mike Pence, to block the counting of electors could be construed as an action he took as president.
