'Reckless': Ex-prosecutor warns Jack Smith could be setting up another Supreme Court loss

Special counsel Jack Smith might be taking a "reckless" move with the federal election conspiracy case against former President Donald Trump, wrote former federal prosecutor Elie Honig for New York Magazine's "Intelligencer" over the weekend — and it could be setting up the Supreme Court to delay and water down the case yet again.

The Supreme Court issued a controversial decision earlier this year that granted a presumption of immunity for presidents on "official acts" in office, while giving very little guidance on how to distinguish an official from an unofficial act. Smith responded by filing a superseding indictment that removed all the evidence involving Trump's efforts to direct the Justice Department to overturn the election — something that would be unprovable under the court's opinion — while retaining Trump's alleged improper efforts to pressure state officials, something the president clearly has no power to do.

Where Smith is pushing it, Honig warned, is that he has largely left in the efforts to pressure Vice President Mike Pence to block the certification of electoral votes — something that he would now be responsible for proving was not an official act.

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"Even if Judge Chutkan does agree with Smith that the Pence allegations can remain in the case, Trump gets to appeal that determination before trial. So the Pence question, among others, will likely end up right back at the Supreme Court," wrote Honig. And the Supreme Court already reversed Chutkan once, in her finding that there is no presidential immunity at all — and their own opinion, hinted Trump's dealings with Pence are "presumptively" immune, meaning Smith would have a high burden of proof.

"Maybe Smith will persuade the Supreme Court over to his side. After all, Trump’s conduct toward Pence was seemingly motivated by his desire not to do the job of president but rather to steal an election," wrote Honig. But he is doubtful, because the Supreme Court already said that "the President's motivations" are irrelevant to whether an act is official or unofficial. "In other words, the Court said, it doesn’t care whether the conduct was good or bad. It cares whether the president did something that, on its face, is something presidents do — and 'talking to the vice-president' probably qualifies."

This potentially sets up the Supreme Court to once again intervene in the case, delaying it even longer at a moment when it already cannot take place before the election, and narrowing its scope even further. And Smith, noted Honig, actually has a history of losing cases through overreach, having supervised corruption cases against former Virginia Gov. Bob McDonnell and New Jersey Sen. Bob Menendez that were ultimately overturned or thrown out, respectively.

The upshot, he concluded, is that Smith "has seemingly decided that if he’s going to go down on the January 6 case, he’ll go down hard, and to hell with it all. Don’t be surprised if, in the end, Smith’s defiant approach seals his own demise."