Jack Smith Can ‘Force Donald Trump’s Hand’—Former Prosecutor

Department of Justice (DOJ) special counsel Jack Smith can “force Donald Trump’s hand” by indicting his co-conspirators in the federal election subversion case before the president-elect takes office, former prosecutor Glenn Kirschner said on Friday.
After Trump, the Republican nominee, won this year’s presidential election against Vice President Kamala Harris, the Democratic nominee, it became all but certain that Smith’s Washington, D.C., case against Trump would go away, at least for the time he’s in office.
Smith is reportedly taking steps to wind down his two cases against Trump—the D.C. case and the classified documents case in Florida, which was dismissed by Judge Aileen Cannon, a Trump appointee, but that Smith appealed.
It’s a longstanding DOJ policy that a sitting president cannot be criminally prosecuted while in office. Additionally, Trump said last month that he would fire Smith “within two seconds” after returning to the White House.
In the roughly two months Smith has until Trump reenters the White House, Kirschner, a former assistant U.S. attorney and frequent Trump critic, said on his YouTube show Justice Matters on Friday that the special counsel “must indict” the six unnamed co-conspirators listed in Trump’s D.C. indictment.
“Jack Smith must indict Donald Trump’s co-conspirators because that will force Donald Trump’s hand,” Kirschner said. “If Donald Trump wants to get rid of the cases against his criminal associates, his co-conspirators, the folks who helped him try to steal the 2020 election if he wants to get rid of those cases after he’s sworn in as president, he will have to engage in corruption.”
Speaking to Newsweek on Saturday via telephone, Kirschner said that he believed Smith was always going to indict these co-conspirators, but it was a matter of timing.
“We have to attempt to hold [the co-conspirators] accountable for their crimes because if we don’t, that’s just giving permission and encouragement to the next criminal conspiracy that wants to try to steal an election,” he said.
In his YouTube video, Kirschner listed the two ways Trump could engage in corruption to block the prosecution of his co-conspirators.
“He can appoint an attorney general who’s willing to do Donald Trump’s criminal and corrupt bidding and order the attorney general to dismiss the criminal cases against Trump’s co-conspirators,” he said.
The former prosecutor said Trump could also “deliver a corrupt pardon.”
“Nobody has ever challenged in court, a corruptly delivered pardon,” Kirschner told Newsweek, adding, “A presidential pardon cannot be delivered, if it is part of a criminal act. The courts cannot uphold the legality of that kind of a pardon.”
He added, however, that when the Supreme Court ruled on July 1 that former presidents have immunity for official acts conducted while in office, they “bestowed upon American presidents, the power of lawlessness.”
Newsweek has reached out to Trump’s communications director, Steven Cheung, via email and the DOJ via online form for comment Saturday morning.
In August 2023, Trump was indicted on four felony counts after he allegedly tried to overturn President Joe Biden’s 2020 election victory in the aftermath of his loss, which culminated in the U.S. Capitol riot on January 6, 2021.
On that day, Trump supporters stormed the Capitol building in a failed attempt to stop Congress from certifying Biden’s election win. The riot erupted following repeated claims from Trump that the election was stolen via widespread voter fraud, despite there being no substantial evidence of this occurring.
Trump, who claimed the case was politically motivated against him, pleaded not guilty to all charges: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction and attempting to obstruct an official proceeding; and conspiracy against rights.
Update 11/9/24, 12:19 p.m. ET: This article has been updated with comment from Kirschner.