Jack Smith Move May Have Handed Donald Trump His Freedom—Attorney

There is a "strong chance" that the U.S. Supreme Court will rule that former president Donald Trump has presidential immunity from prosecution, a former FBI assistant director said.

Chris Swecker, now an attorney based in Charlotte, North Carolina, told Newsweek that the court's strict interpretation of the Constitution could allow Trump to walk free from election fraud charges.

On Monday, Special Counsel Jack Smith, the chief prosecutor in Trump's election fraud case, asked the court for a fast-track decision on whether Trump has presidential immunity. The court said it would decide as soon as possible on whether to hear the case, an indication of the seriousness with which it views the legal issues involved.

The former president was indicted on four counts in Washington, D.C., for 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. Trump has pleaded not guilty to the charges, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.

A Washington, D.C., jury is due to be selected in February and the trial is slated to begin on March 4, 2024.

Swecker, who was with the FBI for 24 years, said that recent patterns suggest the court may rule in Trump's favor.

"I wouldn't say the Supreme Court is a friendly forum for Trump, but this Supreme Court will stick to strict construction of constitutional issues and try to determine the intent of the founders when it comes to constitutional issues," he said. "They will not try to create new law. So I think Trump has a strong chance of prevailing."

He said Smith's prosecution is all based on Trump's words and it's always "a strain to try to make the evidence fit the elements of the crime."

Neama Rahmani, a former federal prosecutor, told Newsweek he believes that even the current conservative-leaning Supreme Court will find that Trump is not immune from prosecution, even if the legal issues have not been fully tested.

"Presidential immunity is unlikely to apply to Trump's conduct, even in the conservative Supreme Court," he said.

Los Angeles-based Rahmani, now the president of the West Coast Trial Lawyers firm, said that the civil courts "have routinely held that campaigns and elections are not part of a president's official duties, and therefore the president is not immune from lawsuits related to campaign activities."

"Though it hasn't been tested, the same logic should apply to a criminal prosecution, especially when criminal activity is less deserving of protection than civil claims," he said.

Newsweek reached out to Trump's attorney by email Wednesday for comment.

This is one of four criminal cases that Trump is facing while he campaigns as front-runner for the 2024 Republican presidential nomination. He has also pleaded not guilty to charges in the other cases and has repeatedly said that they form part of a political witch hunt.