Shortly after special counsel Jack Smith released new material that attempts to connect and implicate former President Donald Trump to and in the events that occurred on January 6th, 2021, at the Capitol, contrarian CNN contributor Elie Honig sounded off and suggested that the attempt was calculated to try and get one more shot in before the November election.
As background, special counsel Smith filed, in federal court, massive briefing on the issue of Trump’s immunity from prosecution. The briefing was around four times as long as a typical filing, coming in at 165 pages. It mainly had to do with Trump’s behavior and communications on the day of the unpleasantness in January.
Commenting on the filing in an op-ed for Intelligencer, Honig noted that one of the main takeaways of the filing doesn’t have to do with the contents of it, but rather is related to the obvious intentions of special counsel Jack Smith and what he intends to do with the case, arguing that the situation looks very politically-focused rather than justice-focused. Honig said:
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.
Continuing in the op-ed about the case, the legal analyst noted that the defenses of Smith’s conduct, which mainly revolve around the public supposedly needing to be informed about what the former president did, fall apart in the face of the norms violated by his behavior and the DOJ’s waiting until the election drew nearer to do anything. Honig wrote:
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.)
There’s still more. Honig also noted that, far from being typical, this filing was significantly different than the normal procedure. In fact, it was quite backward, in that Smith filed before the defense, getting yet another shot in before the election, which is the opposite of normal. Honig also noted that the judge let Smith do so despite noting that it was irregular. Honig wrote:
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.
Additionally, Honig noted that the filing is, in its content, highly prejudicial to the former president in both the case and the election, as it will get accusations about him in front of the jury and in front of the electorate, but because it is outside of a trial setting it can’t be effectively questioned or debuted by the defense in the same way that an accusation in trial would be. Honig wrote:
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 . . .
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.
Other commenters on the case have made similar notes about the prejudicial nature of Smith’s filings. For example, one former top DOJ official noted that the SCOTUS ruling on official acts immunity could be a lurking landmine in Smith’s case, as he has potentially tainted the jury pool by introducing inadmissible evidence about the former president. Watch him here:
Featured image credit: By United States Department of Justice – This file has been extracted from another file, Public Domain, https://commons.wikimedia.org/w/index.php?curid=132849708
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