The Special Counsel Takes One Last Pre-Election Swipe

Dear Reader,

Jack Smith has failed in his obsessive quest to try Donald Trump before the 2024 election. So instead, the Special Counsel has bent ordinary procedure to get in one last cheap shot, just weeks before voters go to the polls.

Smith has now dropped a 165-page doorstop of a filing in federal court, on the issue of Trump’s immunity from prosecution. Judge Tanya Chutkan – who suddenly claims not to care about the impending election despite her earlier efforts to expedite the case to get it in before the very same election, which got her reversed and chastised by the Supreme Court – duly complied with Smith’s wishes, redacted out a few obvious names (who ever might “Arizona Governor [Redacted P-16]” be?), and made the rest public.

There are two headlines here. The immediate takeaway lies in the revelations contained in Smith’s oversized brief. (He asked the judge for, and received, permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details on Trump’s effort to pressure Vice President Mike Pence to throw the election his way, Trump’s phone use and use of Twitter as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story’s structure is the same as we’ve long known, but the new details lend depth and dimension.

The larger, if less obvious, headline is that Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice – so long as he gets to chip away at Trump’s electoral prospects. At this point, there’s simply no defending Smith’s conduct on any sort of principled or institutional basis. “But we need to know this stuff before we vote!” is a nice bumper sticker, but it’s neither a response to nor an excuse for Smith’s unprincipled, norm-breaking practice. (It also overlooks the fact that the Justice Department bears responsibility for taking over two and a half years to indict in the first place.)

Let’s go through the problems with what Smith has done here.

First, this is backwards. The way motions work – under the federal rules, and consistent with common sense – is that the prosecutor files an indictment; the defense makes motions (to dismiss charges, to suppress evidence, or what have you); and then the prosecution responds to those motions. Makes sense, right? It’s worked for hundreds of years in our courts.

Not here. Not when there’s an election right around the corner and dwindling opportunity to make a dent. So Smith turned the well-established, thoroughly uncontroversial rules of criminal procedure on their head and asked Judge Chutkan for permission to file first – even with no actual defense motion pending. Trump’s team objected, and the judge acknowledged that Smith’s request to file first was “procedurally irregular” – moments before she ruled in Smith’s favor, as she’s done at virtually every consequential turn.

Which brings us to the second point: Smith’s proactive filing is prejudicial to Trump, legally and politically. It’s ironic. Smith has complained throughout the case that Trump’s words might taint the jury pool. Accordingly, the Special Counsel requested a gag order that was so preposterously broad that even Judge Chutkan slimmed it down considerably (and the Court of Appeals narrowed it further after that).

Yet Smith now uses grand jury testimony (which ordinarily remains secret at this stage) and drafts up a tidy 165-page document that contains all manner of damaging statements about a criminal defendant, made outside of a trial setting and without being subjected to the rules of evidence or cross-examination, and files it publicly, generating national headlines. You know who’ll see those allegations? The voters, sure – and also members of the jury pool.

And that brings us to our final point: Smith’s conduct here violates core DOJ principle and policy. The Justice Manual – DOJ’s internal bible, essentially – contains a section titled “Actions That May Have An Impact on the Election.” Now: does Smith’s filing qualify? May it have an impact on the election? Of course. So what does the rule tell us? “Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

Remember, Smith begged the Judge to flip the rules on their head so he could file this document first, and quickly – “any action,” by any reasonable definition – with the election right around the corner. Anyone who objected to James Comey’s outrageous announcements about the Hillary Clinton email investigation on the eve of the 2016 election should feel the same about Smith’s conduct now. What’s the distinction? Both violated ordinary procedure to take public steps, shortly before an election, that plainly would have an impact on that election.

I’m going to hand this one over to one of DOJ’s most esteemed alums, who explained it this way to the Justice Department’s internal watchdog: “To me if it [an election] were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now, you don’t do it.”

Those words were spoken by Sally Yates – former Deputy Attorney General, venerated career prosecutor, no fan of Trump (who unceremoniously fired her in 2017), and liberal folk hero. As usual, Yates is spot-on. And her explanation conveys this indelible truth: if prosecutors bend their principles depending on the identity of their prey, then they’ve got no principles at all.

Stay Informed,

Elie