Jack Smith Holding Key Argument in His ‘Pocket’: Ex-FBI Deputy Director

Special Counsel Jack Smith may be holding onto a key legal argument in former President Donald Trump’s federal election subversion case, according to former FBI Deputy Director Andrew McCabe.
Smith outlined a plethora of new evidence against the former president in a 165-page briefing filed late last month related to accusations that Trump attempted to overturn his 2020 election loss. The document, which was unsealed last Wednesday, homes in on actions Trump took as a private citizen, rather than as part of his official duties, in the aftermath of the 2020 election, which culminated in the U.S. Capitol attacks on January 6, 2021.
Trump, the GOP nominee for president, has pleaded not guilty to the four felony counts included in Smith’s indictment and claims that the charges are politically motivated. He has also previously argued that his challenges of the 2020 election results were a form of protected free speech, an argument that Smith has pushed back on in past court filings.
But as legal analyst Allison Gill pointed out in an episode of her podcast JACK posted on Saturday, which she co-hosts with McCabe, Smith left out his rebuttal to the former president’s free speech claims in his latest filing.
Gill, the creator of the Mueller, She Wrote podcast, added that with Smith’s other arguments included in the briefing, “I don’t think he needs that one” regarding free speech.
McCabe added in the conversation, “I think it’s one of those things that he probably keeps in his pocket to see what Trump throws back at him in Trump’s response, which could be in four weeks or nine weeks, apparently.”
Trump’s defense team first hinted that it may use a free speech defense shortly after the former president was charged in August 2023. At the time, Trump lawyer John Lauro accused the DOJ of having “criminalized” the First Amendment.
A few months later, after Trump’s team first motioned to dismiss the federal election case in its entirety, Smith adamantly rejected that First Amendment protections applied to the charges against the former president, writing in a filing in November 2023, “The First Amendment does not protect fraudulent speech or speech otherwise integral to criminal conduct, particularly crimes that attack the integrity and proper function of government processes.”
In recent months, both the defense and prosecutors have pivoted to arguing over how the presidential immunity clause of the U.S. Constitution impacts Trump’s charges. After an appeal from Trump of a lower court’s ruling, the U.S. Supreme Court ruled in July that the former president cannot face criminal charges for any actions he made as part of his official duties under the immunity clause.
Smith filed a superseding indictment last month in reaction to the Supreme Court’s ruling, laying out that Trump’s actions in the aftermath of the 2020 election were made as a private citizen and a presidential candidate, not as president of the United States.
Prosecutors’ opening brief focused on the same issue, emphasizing that Trump’s actions went beyond his official duties. Smith dedicated one section of the filing to establishing “that nothing the Government intends to present to the jury is protected by presidential immunity.”
Former federal prosecutor Neama Rahmani told Newsweek on Monday that Trump is not necessarily making an “inconsistent argument” by arguing that he is both immune from Smith’s charges under presidential immunity and that he is protected by the First Amendment.
“He has consistently maintained that he is absolutely immune from prosecution as the current or former president,” Rahmani, president of West Coast Trial Lawyers, said over email. “Trump has never conceded being a private actor. His argument is that if a court were to deem him a private actor, the First Amendment would still apply.”
Rahmani added it Smith may still raise in court that there is a “potential inconsistency,” but he does not believe that the doctrine of judicial estoppel—which prevents parties from making inconsistent arguments during legal proceedings—would apply to Trump’s claims.
Trump has characterized the brief as a “hit job” and claims that Smith is hoping to influence voters ahead of the November 5 election to boost his Democratic opponent, Vice President Kamala Harris.
“Deranged Jack Smith, the hand picked Prosecutor of the Harris-Biden DOJ, and Washington, D.C. based Radical Left Democrats, are HELL BENT on continuing to Weaponize the Justice Department in an attempt to cling to power,” Trump wrote in a post to Truth Social last week.
Update 10/7/24, 7:43 p.m. ET: This story has been updated with additional comment from Neama Rahmani.