Last week, after U.S. District Judge Tanya Chutkan unsealed special counsel Jack Smith’s redacted motion laying out his evidence in the Jan. 6 prosecution of Donald Trump, the former president resorted to one of his go-to distractions: accusing Smith of interfering with the election. But Trump’s accusations are, as usual, projection—election interference has long been his own political brand.
Ironically, a Manhattan jury has actually convicted Trump of interfering in the 2016 election. He did that via a successful October scheme that year to “catch and kill” the story of his one-night stand with adult film star Stormy Daniels.
Then, of course, there’s Trump’s attempt to interfere with the 2020 election by his multiple then-secret schemes to overturn the will of the people. That makes the irony of Trump’s accusation against Smith especially rich. After all, what the federal court did in releasing the special counsel’s evidence was to shine light on previously unknown information about Trump’s 2020 scheme.
Plainly put, a public informed about its government and leaders is the currency of democracy. In this case, being informed means having the fullest information about a former president relentlessly pressing his vice president to unconstitutionally reject or delay the Jan. 6 certification of President Joe Biden’s election.
Moreover, Trump’s effort to overturn the previous election was unmistakably a precursor to what is afoot if he loses again in 2024. Because the past is so often prologue, Trump has tried his damnedest to keep us from connecting the dots between what he did last time and what he intends to do this time if he ends up on the short end of the electoral vote.
On that score, one of many bombshells in Smith’s filing stands out. At a critical moment in 2020, Nick Luna, the White House director of Oval Office operations, overheard Trump telling his family members, “It doesn’t matter if you win or lose. You have to fight like hell.” That is vital information for citizens in 2024 because Trump has repeatedly refused to say he would accept the election results if he loses, just as he didn’t accept the result in 2020.
Let’s consider seriously for a moment whether there’s anything wrong with Smith releasing this evidence so close to the election. In its section on “Fair Trials and Public Discourse,” the American Bar Association’s Standards of Criminal Justice manual recognizes that “a transparent and open criminal justice system is of critical importance in our democracy.” The standard treats as proper prosecutors’ “statements reasonably necessary to warn the public of any ongoing dangers that may exist.” The above statement by Trump to his family four years ago qualifies.
Moreover, Smith submitted his prosecutorial evidence in court filings and a judge approved its disclosure; there were no “extrajudicial statements” by prosecutors, the primary vice against which the ABA standards warn.
And contrary to the claims of Trump and his allies—like right-wing favorite Jonathan Turley and, in this case, even former prosecutor Elie Honig—the special counsel adhered to the rules of the criminal justice system.
First, it was the radical July 1 immunity ruling of the Supreme Court majority that sent the case back to the district court to apply its anti-constitutional holding that only “nonofficial” presidential actions could be subject to criminal prosecution. The court directed that the trial judge must determine before any trial which charges could go forward and even which evidence could be used.
Accordingly, on Aug. 30, after narrowing the scope of the original indictment, Smith filed his proposal for complying with the Supreme Court’s decision. He suggested that the first step be his submitting the government’s evidence of Trump’s “unofficial” criminal conduct related to the 2020 election. If the court found such evidence sufficient to sustain the grand jury’s newly tailored Aug. 27 superseding indictment, the next step in the process—another Trump appeal—would follow. On the other hand, if the court found insufficient evidence of nonofficial criminal conduct, under the July 1 immunity decision, that case would be over.
With the court’s consent, on Sept. 27, Smith filed under seal his motion and the evidence of Trump’s criminal conduct that, according to Smith, was unrelated to his official duties. On Wednesday, the court unsealed a redacted version of the filing, making most of the evidence public.
Yet critics took the special counsel to task for supposedly deviating from judicial and Justice Department rules in order to influence the election. Some of the arguments bordered on the silly.
For example, in a New York magazine commentary entitled “Jack Smith’s October Cheap Shot,” former prosecutor Honig criticized Smith and the court for not waiting until the defendants filed a motion, the usual order in pretrial proceedings. Nonsense. Both the DOJ’s procedures and the Federal Rules of Criminal Procedure permit a prosecutor to file motions first, and prosecutors commonly do so. In particular, as Justice Samuel Alito has written, the Speedy Trial Act “was designed not just to benefit defendants but also to serve the public interest.” It is the role of prosecutors to vindicate that interest by initiating judicial action when a defendant dawdles.
Trump and Smith’s critics also asserted that the special counsel was violating DOJ rules about prosecutorial actions against candidates undertaken shortly before an election. The Justice Department manual states:
Federal prosecutors and agents may never select the timing of any action … for the purpose of affecting any election. … Any action likely to raise an issue or the perception of an issue … shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.
Note that this internal DOJ policy merely bars prosecutors from “selecting the timing” of actions that could have political effects. But the timing of Smith’s action arose from Trump’s success in getting the Supreme Court to defer ruling on the immunity issue until the last day of the court’s term. At Trump’s urging, the court last year rejected Smith’s application to take up the issue. Had the court acted when Smith asked, the current proceedings could have taken place months ago.
When the court eventually took up the case, it waited additional months to decide it. Hence, it was Trump and the court that pushed the timetable for screening the long-pending charges until the autumn election season.
Nor is there any reason to accuse Smith of moving forward promptly for the “purpose” of affecting the election. In the context of a prosecution that Trump himself had so long delayed, and given the public interest in resolving the issues as rapidly as possible, Smith was entitled to move forward quickly in accord with the Supreme Court’s remand.
As for releasing evidence, Smith wrote:
The public’s interest is fully vindicated by accessing the substantive material in the government’s filing. For example, the unredacted substance of what a witness said is more important, for purposes of public access, than the redacted identity of the specific person who said it.
One of the hallmarks of the criminal justice system is that the proceedings are presumptively public. This transparency helps assure citizens that judicial decisions are being rendered fairly and with a demonstrable factual basis. To avoid any comparison with the infamous secret trials in the English Star Chamber, the Sixth Amendment guarantees that federal criminal trials, and related proceedings, be “speedy” and “public.”
Nor can one safely assume, as Smith’s critics apparently have, that he failed to follow DOJ rules. The special counsel regulations provide that in extraordinary circumstances such as these involving a former president or those where there may be a perception of an attempt to influence an election, a special counsel may skip prescribed intermediate consultations and “consult directly with the Attorney General.”
Smith, by his training, experience, and professionalism—as well as that of the accomplished DOJ lawyers in his office—had every reason to have consulted with Merrick Garland before filing his motion and its supporting evidence. That is especially so because the special counsel regulations call upon an attorney general to give deference to a special counsel’s proposed actions, and Garland has done so on multiple occasions.
Indeed, one might ask whether everyone who is presuming that Smith did not follow department procedure is taking their own cheap shot.