Lawyer: Donald Trump could take bold step to end election campaign

Donald Trump could ask a judge to declare the election proceedings against him over, a law professor said.

New York law professor Stephen Gillers said Newsweek that it would be a bold move by Trump after chief prosecutor Jack Smith filed new charges on Tuesday.

Smith formulated the new charges in response to a July 1 Supreme Court ruling that grants the president broad immunity from prosecution except for private acts.

A hearing on the new charge, which replaces an older one, is expected to take place before Trial Judge Tanya Chutkan.

“Trump could try to delay the hearing given the proximity to the election. Or he could make a bolder argument and claim that no hearing is needed at all because what Smith now calls 'private conduct' is undoubtedly official conduct,” Gillers said.

He added that Smith's new charges, which focus on Trump's private conduct rather than his conduct as president, will be the subject of a massive legal challenge by Trump's legal counsel.

“The fact that Smith characterizes the conduct as private and therefore not immune does not mean that the courts or Trump will accept that characterization of the conduct.”

“Therefore, a hearing will be necessary to determine the facts that will enable Judge Chutkan and ultimately higher courts to decide whether or not the alleged conduct is private, and if not private, whether the conduct is immune,” he said.

Trump has been charged with four counts of working to overturn the outcome of the 2020 election in the run-up to the riots at the U.S. Capitol on January 6, 2021. The Republican presidential candidate has pleaded not guilty, saying the case is part of a political witch hunt.

The Supreme Court ruled 6-3 on July 1 that presidents enjoy broad immunity for their official acts. The court said presidents have absolute immunity for central policy acts and some immunity for other acts committed as president, but no immunity for purely private acts.

The court also ruled that official acts cannot be used as evidence when a president is accused of unofficial acts – a part of the ruling that is of great importance in the Trump case.

Newsweek Trump's lawyers and the office of special counsel Smith asked for email comment on Thursday.

Gillers said Smith could have taken a different approach to dealing with the new protections granted to Trump by the Supreme Court.

This would have involved convincing a judge that Trump does not enjoy immunity for acts of the president under law.

According to the Supreme Court's ruling on July 1, these do not enjoy the same immunity as constitutionally protected actions of the president.

“The Court's decision granted the President immunity for conduct within the scope of his constitutional powers and presumptive immunity for other official conduct, such as conduct arising out of powers vested in him by law.”

“Smith could have tried to circumvent the presumption of immunity for official acts on the basis of statutory provisions, but he chose a safer approach. He simply alleges that Trump committed criminal acts in his personal capacity for which, as the court told us, he has no immunity at all,” he said.

“However, the fact that Smith characterizes the conduct as private and therefore not immune does not mean that the courts or Trump will accept that characterization of the conduct. For that reason, a hearing will be necessary to develop the facts that will allow Judge Chutkan and eventually higher courts to decide whether or not the alleged conduct is private and, if not, whether the conduct is immune,” Gillers said.