One simple question may determine whether Mike Pence can help Jack Smith: Legal analyst

When special counsel Jack Smith filed a superseding indictment against former President Donald Trump in the federal election interference case, he excluded all sorts of evidence that could run afoul of the Supreme Court's immunity decision. But he chose to keep in former Vice President Mike Pence — using a bit of clever argument.

Whether this will work hinges on a key question, CNN legal analyst Jennifer Rodgers told anchor Phil Mattingly.

"It appears that what Smith is trying to do here is to take a lot and put it outside the orbit of the office of the presidency," said Mattingly. "The special counsel is arguing also that the former vice president, his vice president, Mike Pence, that his role in certifying the election results was ceremonial, not part of his duties as vice president. You think that's going to work?"

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"Yeah. That's the big question to me is the thing that's closest to the line," said Rodgers. "Was he wearing his hat of vice president or was he wearing the hat of the president of the Senate when this pressure campaign was going on? And that's where I think Jack Smith may have the most trouble on appeal and even perhaps initially with Judge [Tanya ]Chutkan, in where that conduct falls."

In all other regards, she continued, "I think they've done a good job of kind of laying out the official versus unofficial, but I agree ... this really is the thing where I think they might have the most trouble, and we're at the starting line. So, Judge Chutkan will have the first crack after Donald Trump and his lawyers move to dismiss it, this indictment, at saying whether this new superseding indictment passes muster or not, they may have to go back to the drawing board on that very issue that you point out."

"But we're at the starting line and we'll see now again what happens as soon as this is under consideration by the court," she added.

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