'Jack Smith still has one trick up his sleeve' to sidestep delays in Trump trial: expert

Though the U.S. Supreme Court appears likely to reject Donald Trump's claim of absolute immunity, several onlookers expect it to make a move that will greatly delay Jack Smith's election interference case against the ex-president.

But a legal expert says the special counsel still has "one trick up his sleeve" to skip past any further trial delay conservative justices might grant.

The justices seemed skeptical of the former president's claims that the office of president makes him immune from prosecution, but several conservative justices indicated they might send the case back to lower courts to sort out some smaller issues in the case before Trump might stand trial for trying to subvert the 2020 election.

Former federal prosecutor Barbara McQuade told MSNBC's "Morning Joe" that Smith might be able to avoid that delay.

"My read is that there are several justices, the women justices, who are ready to go," McQuade said. "They think the idea -- perhaps there is some presidential immunity for some official acts, but that the acts alleged in this indictment are not those acts, and let's go already.

"In fact, Justices [Amy Coney] Barrett and [Elena] Kagan were pinning down [Trump attorney] John Sauer on trying to say, you'd agree this is a private act, right? Using allegations in the indictment, I think, hoping to pin him down to avoid further delay. Some justices think further delay is necessary. The linchpin is Chief Justice [John] Roberts.

"On the one hand, he suggested it'd be a one-legged stool to allow only the private acts and not have any reference to the official acts. There's a little room, I think, for arguing that the crimes here are not official acts, but you need some evidence of official acts to understand the context. The example Chief Justice Roberts used was bribery. 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."

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As much as she'd like to see the case go to trial, McQuade tended to agree that some issues raised in the case should be sorted out first — but she said Smith might still be able to bring Trump to trial before November's election.

"At the end of the day, it seems necessary to probably sort out what is and is not an official act here," she said. "Most notably, the conduct relating to the Department of Justice and using them or abusing them could be deemed an official act.

"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."

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