Jack Smith is taking a risk by prosecuting Donald Trump for communications with former vice president Mike Pence, according to a legal analyst.
Smith was forced to modify his January 6th indictment after the Supreme Court ruled in July that presidents have broad immunity for their "official acts."
In a stunning move that was widely seen as legally improper, Smith released a trove of evidence against Trump to the public last week.
While many see Smith as trying to interfere in the presidential election, the official purpose of his filing was to convince judge Tanya Chutkan that the charges against Trump can stand as "private acts" after the Supreme Court's immunity ruling.
While Smith removed some charges against Trump, he preserved many of the original allegations but characterized them as "private acts" of a presidential candidate.
Smith's efforts to retain some of the allegations against Trump have raised eyebrows. In particular, Smith has alleged that Trump's communications with his vice president, Mike Pence, constituted private acts.
The Pence allegations cut to the core of Smith's conspiracy narrative: that Trump pressured Pence to overturn the 2020 election results. But some legal analysts are skeptical that Smith's argument will fly.
Stephen Gillers, a law professor at New York University, said he is skeptical that Judge Chutkan, and higher courts, will agree that Trump's conversations with his vice president were private rather than official conduct.
"Communications with Pence will be the hardest challenge for Smith, who has to persuade Chutkan and then higher courts that the conversations between the president and his running mate in this period are personal," Gillers said.
Trump's best chance of exoneration, however, likely depends not on the caprices of Judge Chutkan but the will of American voters.
Chutkan has been overwhelmingly favorable to Smith, so it appears quite possible that she would retain the Pence allegations, however legally groundless they may appear to outside observers.
It was Chutkan who allowed Smith to release 165 pages of evidence against Trump just weeks before the presidential election, in what has been widely criticized as a breach of legal norms.
Smith's filing has widely been condemned - not just by Trump, but by legal analysts across the political aisle - as an improper attempt to litigate the case in the court of public opinion and damage Trump's hopes of winning re-election, with a jury trial in doubt.
Smith is well aware that if President Trump wins the election, he could dismiss the case and tell Smith to pound sand.
