Jack Smith’s New Move Against Donald Trump Was ‘Stroke of Genius’—Attorney

On a recent episode of the podcast No Holding Back with Susan Estrich, attorney Glenn Kirschner called Department of Justice’s (DOJ) special counsel Jack Smith’s revised indictment against former President Donald Trump a “stroke of genius.”
Smith on Tuesday filed a new indictment against Trump in the case into his alleged attempts to thwart the 2020 election results, which the former president has claimed was stolen from him via widespread voter fraud despite a lack of substantial evidence.
The revised indictment comes after the U.S. Supreme Court ruled in July that presidents have immunity from prosecution for official acts, but not for acts as a private citizen or candidate. Trump, the GOP’s 2024 presidential nominee, has argued his actions were official acts so he should not be prosecuted.
However, prosecutors allege he was acting as a private citizen for many of his alleged attempts at overturning the election results. In the latest indictment, Smith emphasized that Trump was acting as a candidate—not as president—when trying to overturn the 2020 election. The indictment still includes the same four criminal counts on which Trump was initially charged.
The four federal charges that Trump faces include: conspiracy to defraud the U.S., conspiracy to obstruct an official proceeding, attempting to obstruct an official proceeding, and conspiracy against rights.
The former president has pleaded not guilty to all charges and alleges the case is politically motivated.
On Estrich’s podcast, which was posted to YouTube on Friday, Kirschner, a former assistant U.S. attorney and frequent Trump critic, called the superseding indictment a “stroke of genius” due to Smith being “proactive” and “retooling” the indictment rather than attempting to litigate each act against the former president in front of Judge Tanya Chutkan who is overseeing the case.
“He went proactive, and he said what I’m going to do is I’m going to retool and pull out of the original indictment everything that I believe might enjoy presidential immunity in the wake of the Supreme Court’s ruling,” Kirschner said. “And he pared it down from a 45-page, 4-count indictment to a 36-page, 4-count indictment. I was so heartened to see that he believed he still had enough admissible evidence that did not enjoy presidential immunity that all four felony charges remain, and I was so thrilled to see that now he’ll take this pair down indictment, and he will litigate the question of whether he was right.”
He added: “And if Judge Chutkan agrees with him those four counts will remain, then of course this case will meander its way back up to the Supreme Court.”
Newsweek has contacted Trump’s legal team and Smith via the DOJ for comment outside of regular office hours on Saturday.
The new indictment, which was “presented to a new grand jury that had not previously heard evidence in this case,” according to a spokesperson for the special counsel, focuses on the “unofficial, private conduct by Trump that the Supreme Court has said is fair game for prosecutors to pursue.”
Kirschner also praised Smith for being “three steps ahead of where many other lawyers might be at this time.”
“The evidence was presented to a new grand jury that had not previously heard evidence in this case. The reason that’s so important is because Donald Trump’s lawyers would have screamed bloody murder if Jack Smith stuck with the first indictment, they would have said wait a minute that indictment is the product of privileged information, so the entire thing is tainted. Jack Smith cut that argument off at the pass.”
In a joint court filing on Friday, the lawyers agreed on what types of motions and briefing are likely in pre-trial proceedings, but noted they have “differing views on how the Court should schedule these matters and the manner in which they are to be conducted.”
Trump’s lawyers argued any “additional proceedings” after the immunity case, which could include trial if the case is not dismissed, should take place in “spring—fall 2025.”
Trump’s lawyers suggested details of the defense’s motion to dismiss the case based on presidential immunity should be provided by December 13, after which the special counsel will reply by January 3. They suggested non-evidentiary hearings “regarding motions to dismiss and compel” be heard on the week of January 27, 2025.
Smith’s, by contrast, were keen to move on quickly with the case, asking the court for any other Trump motions in the case to “run parallel with the schedule” to discuss immunity.
Prosecutors rejected the bid to get the case dismissed over presidential immunity, stating: “The Government proposes that it file an opening briefing in which it will explain why the immunity set forth in Trump [the Supreme Court’s immunity ruling] does not apply to the categories of allegations in the superseding indictment.”