Trump's team thinks Jack Smith indictment referral is a 'foregone conclusion': impeachment lawyer

Former President Donald Trump posted a letter from his attorneys on Tuesday evening, demanding a meeting with Attorney General Merrick Garland to discuss the "outrageous and unlawful" investigations by special counsel Jack Smith, who is weighing whether to pursue charges against the former president for either the January 6 attack on the U.S. Capitol, or the theft and retention of classified documents at his Mar-a-Lago resort.

Speaking to CNN's Abby Phillip during a panel, Robert Ray, who succeeded Ken Starr as independent counsel in the Whitewater investigation and advised Trump during his first impeachment, suggested that this is an ominous sign for Trump.

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"They assume there will be a charging decision near, because all signs are that these cases both the January 6th investigations and the documents investigation case are wrapping up or coming close to wrapping up, and want to get in their say before anything might happen," said New York Times reporter Maggie Haberman. "I don't know how this will be received or taken. But yes, it speaks to the fact that they are taking this incredibly seriously and want to deal with it."

"It also means it's a decision, ultimately, notwithstanding the special counsel regulations, that is one that the attorney general himself has to make," said Ray. "Which raises in the context of an active political campaign with two announced candidates, that you are having the attorney general appointed by one presidential candidate making a charging decision in connection with a criminal case as to a political candidate for the other party. It raises the question, therefore, which I think the lawyers are teeing up one of the questions I think will be out there eventually before too long is the question of recusal."

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"They want to present this meeting — our understanding is that they want to present arguments for why he should not be indicted," said Phillip. "How successful do you think that can be?"

"Well, you know, it often can be successful," said Ray. "But you know, understand this is an unusual situation. In the ordinary course you would expect the attorney general — unless there's some extraordinary reason not to — to endorse the charging decision of the special counsel. It suggests to me that, I think, they think the special counsel's decision is a foregone conclusion, which means the only avenue left to pursue is whether or not the attorney general will authorize the prosecution."

"That is a significant moment in American history," added Ray. "I mean, I guess maybe there's lots of significant moments, but it is a significant moment, and as I have confronted in my own past, the decision about whether or not to charge a sitting or former President of the United States is not a little deal. There are only two people in the United States who are subject to election by all the people. The president and the vice president. And he's a candidate, now, for office. Again, that raises some substantial questions."

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