Jack Smith Finds Chink in Donald Trump’s Armor—His ‘Private’ Attorney

Donald Trump’s use of a private attorney to communicate with Vice President Mike Pence may help to convict him, a former federal prosecutor has told Newsweek.
Neama Rahmani was reacting to the newly released evidence in the former president’s election-fraud case, in which chief prosecutor Jack Smith said that Trump’s use of a private attorney negates his presidential immunity. Smith added that the Republican nominee used a private attorney to pressure Pence into accepting Trump’s claims that the 2020 election was rigged in Democrat Joe Biden’s favor.
Trump was indicted in Washington, D.C., on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021 riot at the U.S. Capitol. The Republican presidential nominee has pleaded not guilty and has said the case is part of a political witch hunt.
Newsweek sought email comment from Trump’s attorney on Tuesday.
As all vice presidents automatically become president of the Senate, Trump wanted Pence to use his Senate role to refuse to certify the 2020 election result.
Smith said that, by using a private attorney to communicate with Pence, Trump cannot not claim presidential immunity.
It is vital for Smith to present the former president’s actions as private after the Supreme Court ruled on July 1 that he has broad immunity from prosecution for presidential acts.
“It is hard to imagine stronger evidence that conduct is private than when the President excludes his White House Counsel and only wishes to have his private counsel present,” Smith wrote in his evidence dossier, which was released on October 2.
Rahmani, now president of the West Coast Trial Lawyers law firm in Los Angeles, told Newsweek that Trump’s communications about his election campaign would be considered private, which is why Smith’s framing of the Pence communication is so important.
“Pence is uniquely situated because he was the vice president, president of the Senate, and Trump’s running mate,” Rahmani said.
“Communications with Pence in his capacity as vice president or president of the Senate would likely be official acts and subject to immunity. Communications that have to do with the presidential campaign are personal and not immune. That is why Smith is trying to frame the communication as a personal communication between Trump, his personal lawyer, and his running mate.”
Smith wants to lay out the case fully against Trump so that all immunity challenges can be dealt with early in the case. That prevents the Republican’s lawyers from raising an objection mid-trial.
The Supreme Court had already outlined in its ruling that the case against Trump should be fully articulated early to allow the federal courts to assess its constitutionality.