Jack Smith's new motion could obliterate Trump's DC strategy
And Trump only has himself to thank.
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On Wednesday, Special Counsel Jack Smith asked the court to put the kibosh on Donald Trump’s efforts to “turn the courtroom into a forum in which he propagates irrelevant disinformation.” If Judge Tanya Chutkan grants this motion, it will eviscerate the former president’s plan to defend himself in DC by making the case about anything other than his own plot to obstruct the congressional certification of President Biden’s 2020 victory.
Broadly speaking, Trump wants to make the election interference trial into a glorified segment of Steve Bannon’s podcast. As he screams WITCH HUNT on social media, his lawyers accuse Biden of weaponizing the Justice Department and seek to introduce evidence of every crackpot election theory ever aired on Newsmax.
Unsurprisingly, the prosecution would like to avoid all that, so the special counsel has filed a motion to block Trump from bombarding the jurors with irrelevant and prejudicial evidence. And because Smith takes no prisoners, he’s done it in the most aggressive way possible.
Trump’s plan
Since before the indictment even dropped in August, Trump screamed daily that Biden is directing the Justice Department to persecute him. He also claimed that Biden is controlling the New York criminal and civil cases, as well as the RICO case in Georgia. He never presents any evidence of this because it’s patently ridiculous. The DOJ has no control over state prosecutions, and the entire purpose of the special counsel statute is to remove investigations which pose a conflict of interest from the immediate control of the DOJ.
Nevertheless, Trump, his lawyers, and right-wing media outlets have treated it as an established fact that the prosecution is politically motivated and made it the centerpiece of their defense both in and out of court.
“Look what’s happening to our beautiful country,” Trump attorney John Lauro complained to Fox News’s Sandra Smith and John Roberts back in July. “For the first time in our history, a sitting president is using the Department of Justice to go after a political opponent criminally, while that political opponent is leading in the polls.”
Their legal filings are scarcely more subtle. In October, Trump filed a motion to dismiss the case based on “selective and vindictive prosecution” — essentially a claim that the DOJ indicted him solely to kneecap Biden’s 2024 opponent.
The motion itself is a farcical hash of anonymously sourced articles from the supposedly fake news Washington Post and New York Times alleging that Biden confided to his inner circle that he wished AG Garland would be more aggressive. In fact, both stories confirm that Biden stayed far away from the Trump cases, even before Garland handed them off to Smith to avoid the appearance of conflict. Trump’s motion also mangles a quote from a press conference to suggest that “Biden’s publicly stated objective is to use the criminal justice system to incapacitate President Trump, his main political rival and the leading candidate in the upcoming election.” (That’s not remotely what he said.)
Even the most mundane scheduling brief is larded with assertions that “the incumbent administration has targeted its primary political opponent — and leading candidate in the upcoming presidential election — with criminal prosecution.”
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As the special counsel points out in his reply, it’s virtually impossible to meet the legal standard for selective or vindictive prosecution. There’s a strong “presumption of regularity” with respect to prosecutors’ motives, and handwaving about anonymously sourced articles isn’t going to cut it. Trump’s lawyers know this, which is why they only spent 11 pages on their doomed petition. But their constant repetition of these unfounded claims makes it clear that, even after this worthless motion gets tossed, they intend to rely on them at trial.
And their discovery demands hint at several other smoke bombs they intend to set off to distract the jury. For instance, a motion filed in November seeks to force the special counsel to disclose theoretically exculpatory evidence about government provocateurs, supposed wrongdoing by the January 6 Committee, and the possibility that a foreign government really did hack the 2020 election.
After the obligatory incantation that “the indictment in this case reflects little more than partisan advocacy designed to sabotage President Trump’s leading campaign for the 2024 President Election,” the brief touches every MAGA conspiracy from Executive Order 13848 to Ray Epps and demands that the DOJ produce proof to back it up.
How Tucker's "FedEpps" conspiracy theory led to Fox News's latest legal mess
Reckless smears have consequences.
The November motion mutters darkly about “undercovers and informants who infiltrated the crowd” on January 6, while demanding all evidence that “a range of additional foreign actors — including Lebanese Hizballah, Cuba, and Venezuela — took some steps to attempt to influence the election.” Trump also wants the DOJ to turn over granular, raw intelligence collected by the intelligence community, much of it classified, so that he can suggest that China really did hack the election. That last one is particularly bonkers since Trump’s lawyers are demanding stuff their client never saw as a means to establish that he rationally believed the election was stolen.
Trump’s lawyers know perfectly well that they’re not going to get those documents, but they’re broadcasting their plan to try to flimflam the jury with irrelevant nonsense about a stolen election. Luckily, the special counsel is broadcasting his own plan to head this strategy off at the pass.
The special counsel’s motion
“Through public statements, filings, and argument in hearings before the Court, the defense has attempted to inject into this case partisan political attacks and irrelevant and prejudicial issues that have no place in a jury trial,” Special Counsel Smith argued in a pretrial motion filed Wednesday. “Although the Court can recognize these efforts for what they are and disregard them, the jury — if subjected to them — may not.”
Prosecutors accuse Trump of attempting to engage in jury nullification, that is, securing an acquittal by convincing jurors to disregard the evidence and law in favor of their own personal feelings of justice. They argue that “the defendant should be precluded from raising irrelevant political issues” which might “improperly suggest to the jury that it should base its verdict on something other than the evidence at trial.”
Toward that end, they seek to exclude a broad swath of evidence which maps almost perfectly onto Trump’s motions to compel and to dismiss for selective prosecution.
Trump's Truth Social page is a riot of witness intimidation
Even his lawyers can't really defend it.
Noting that “[a] selective-prosecution claim is not a defense on the merits to the criminal charge itself,” they urge the court to bar any mention of partisan prosecutorial targeting, “whether in the form of argument or through the use of terminology such as the ‘Injustice Department,’ ‘Biden Indictment,’ or similar phrases — in the presence of the jury.”
In the same vein, they’d like a ban on any line of questioning which is designed to get a witness to impugn the motives of the special counsel or to suggest prosecutorial misconduct. And Trump shouldn’t be able to backdoor this argument by dressing it up as evidence that the trial is a great hardship for him when he’s running for office.
Prosecutors want to bar arguments relating to foreign election interference — the “China loves Biden” stuff — because there’s never been any evidence that Trump relied on it, and “such evidence will be irrelevant to the defendant’s mens rea and will only distract the jury from the issues properly before it.”
And the special counsel would like to exclude any effort to blame the January 6 riot on Capitol police, Nancy Pelosi, or undercover government agents because “the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended.”
Jack Smith is a damn good lawyer
The motion is yet another bold move by a prosecutor who hasn’t taken his foot off the accelerator since he was appointed on November 18, 2022, two days after Trump announced his 2024 candidacy. If Trump were an introspective man, he might consider where he’d be if he hadn’t been so intent on beating his hapless primary rivals to the punch that he forced the ever-cautious Attorney General Merrick Garland to hand the investigations off to a wildly aggressive prosecutor to avoid a conflict of interest.
Would there be any realistic possibility that these cases might go to trial before the election if Trump had just held off a few more weeks on announcing?
Probably not. But of course Trump is not a man given to introspection, so instead he simply throws ketchup at the online wall.
Trump’s eruption is based on his lawyers’ claim that the stay of deadlines in the election case makes it “illegal” for the prosecution to do anything at all. Since Judge Chutkan accepted his demand to put the case on ice while Trump makes his preposterous claims of presidential immunity to the DC Circuit, the government has continued to produce discovery and file their own motions. Trump’s lawyers reacted with their usual histrionics, accusing the prosecutors of trying the former president “in absentia.” Without waiting for the court’s response, the special counsel filed another evidentiary motion Wednesday morning — an aggressive move that an institutionalist like AG Garland would almost certainly have eschewed.
No doubt Team Trump will be back with another round of yelling about “illegal” filings before long. But the prosecutors’ motion imposes no obligation on Trump to respond, so it seems unlikely that Judge Chutkan will reprimand the government for filing it, much less remove it from the record. That leaves Trump in an uncomfortable position. Having insisted that he cannot be burdened with litigation while he appeals the immunity issue, he can either leave this motion, which undercuts every aspect of his defense, unrebutted, or he can answer it with an “illegal” filing of his own that advances the stayed litigation.
Sucks to back yourself into a corner, doesn’t it?
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I seriously wonder if the legal profession will ever address the antics, and illegal acts (Chesebro, Powell, Rudy et al) of Trump's lawyers. The accounting profession had to deal with massive financial failures (Enron, Waste Management, Tyco, etc.), the collapse of one of the Big Eight accounting firms (Arthur Andersen) and the Sarbanes-Oxley Act. These failures and the consequences are now taught in accounting courses and the auditing rule changes are part of the CPA exam and the ethics exam. The medical profession has to deal with the abuse of prescription drugs and Medicare/Medicaid fraud committed by doctors , pharmacists and Big Pharma. But when is the legal profession going to deal with attorney abuses and unethical behavior. I know attorneys have to provide the best possible defense for their clients, but what Trump's attorneys have done and are doing is beyond the pale. It's time for the professions to make it clear that they are in service to society (not dollars), and they need to do some long, hard soul-searching and to to do a better job.
Trump's antics in his lawsuits will be the subjects of law school case studies for years to come.