Last month, federal Special Counsel Jack Smith submitted in response to the Supreme Court's presidential immunity ruling a massive and unprecedented legal brief that outlined his allegations of election interference against former President Donald Trump and how they weren't covered by Trump's absolute or presumptive immunity from prosecution.

According to former FBI Deputy Director Andrew McCabe, Smith appeared to withhold one potentially key legal argument from that document -- how Trump's alleged crimes are also not protected by the First Amendment, Newsweek reported.

In addition to asserting that his actions were protected by presidential immunity, Trump has also claimed that his statements about alleged election fraud in 2020 were also instances of constitutionally protected free speech and are not prosecutable.

No mention of First Amendment protections

McCabe, who briefly served as the FBI's acting director in 2017 before leaving the Bureau in disgrace and under a cloud of investigative suspicion in 2018, is now a co-host of an explicitly anti-Trump podcast known as "JACK" that purports to track all of the various legal maneuverings against the former president.

During a recent episode, podcast co-host Allison Gill -- the creator of the vehemently anti-Trump "Mueller, She Wrote" Twitter account -- noted that while Special Counsel Smith had thoroughly rebutted Trump's claims of presidential immunity in his legal brief, there was no mention of the former president's First Amendment defense claims.

Gill suggested that Smith's arguments on immunity were so good that "I don't think he needs that one" on free speech.

However, McCabe surmised of the special prosecutor, "I think it's one of those things that he probably keeps in his pocket to see what Trump throws back at him in Trump's response, which could be in four weeks or nine weeks, apparently."

Smith's brief made public

CBS News reported last week that Special Counsel Smith's legal brief on presidential immunity, which was filed under seal late last month, was unsealed and made public in partially redacted form by U.S. District Judge Tanya Chutkan, who is presiding over the prosecutorial effort against former President Trump in Washington D.C.

The 165-page motion ostensibly responds to the Supreme Court's immunity ruling in July by arguing that none of Trump's actions for which he has been criminally charged are covered by that immunity, as they were all "private" acts for which he enjoys no protection from prosecution.

The Supreme Court had ruled that former presidents like Trump have absolute immunity from prosecution for their core constitutional duties, presumptive immunity for all "official" acts as president, but no immunity for any allegedly criminal private or unofficial acts.

Interfering in an election with a case about alleged election interference

Special Counsel Smith's brief was broken down into four parts -- first, the alleged evidence against Trump, followed by legal issues associated with presidential immunity, after which is a section that insists none of Trump's actions are covered by immunity, and a conclusion that demands the court hold the former president accountable by bringing him to trial.

In immediate response to Smith's filing, Trump campaign spokesman Steven Cheung said the document was "falsehood-ridden" and "unconstitutional," and declared, "This entire case is a partisan, unconstitutional witch hunt that should be dismissed entirely, together with all of the remaining Democrat hoaxes."

Trump's attorneys have until Oct. 10 to issue a more formal response to Smith's brief with a motion of their own outlining any objections to the content and redactions.

Ironically, given that Smith has charged Trump for attempting to interfere in the 2020 election, the special prosecutor's brief -- filed little more than a month before the 2024 election -- seems deliberately intended to interfere in the current election by smearing the Republican president with criminal allegations he is unable to fully respond to while voters across the nation are already casting their ballots.