CNN’s Elie Honig isn’t Scott Jennings, but he’s also not going to play along with these laughable political games being carried out by the Department of Justice. Honig, a former assistant US Attorney, was aghast over the 165-page filing made by Special Counsel Jack Smith, which Katie covered:
U.S. District Court Judge Tanya Chutkan released a 165-page court document Wednesday afternoon filed by Special Counsel Jack Smith.
In it, Smith claims former President Donald Trump committed a number of crimes as a candidate on January 6, 2021 to stay in power after the 2020 presidential election. The new language and framing is an effort by federal prosecutors to get around the Supreme Court's presidential immunity ruling in June.
"The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one," the document states. "Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as President, had no official role."
The filing is a rewrite of Smith's original January 6 case against Trump, which was forced by the Supreme Court decision on immunity.
And it’s election interference. Honig doesn’t say that but obliterates Smith in his recent column in New York Magazine. The ‘people have the right to know’ mantra has zero bearing in these proceedings. Honig mentioned that since that’s likely what some will argue regarding this atrocious protocol and institutional norms breach. CNN’s chief legal analyst does not hold back torching Smith for breaking the cardinal rule working at the DOJ: if one feels a legal filing could impact an election, you keep it in your pocket. The irony is that there is not only a procedural guide covering these scenarios, but former acting Attorney General Sally Yates was one of the most prominent voices in ensuring that principle was burned into the public’s memories.
Utterly damning column by Elie Honig in New York Magainze. https://t.co/2BgAbojFZ6 pic.twitter.com/7A40fmBw4I
— Tom Bevan (@TomBevanRCP) October 4, 2024
Another layer of irony: Smith criticized Trump, adding that the former president’s words could taint the jury pool. Well, Mr. Smith, what you did was implode your entire moral position, which we all knew was placed in a pressure cooker. When Smith couldn’t get his trials going, he went rogue (via NY Mag):
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 backward. 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.”
Honig quotes Yates: “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.”
“If prosecutors bend their principles depending on the identity of their prey, then they’ve got no principles at all,” he wrote.
What a brutal takedown and an event that only solidifies that the Justice Department is corrupt, unhinged, and untrustworthy. Attorney General Merrick Garland, where are you? Did you sign off on this, too?
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