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Special Counsel Jack Smith just filed a massive motion attempting to argue that the Supreme Court’s immunity decision should not derail his DC election case against Donald Trump.
The timing and tone of his filing serve no necessary legal end in a case that is already on indefinite hold until after the election, and is instead purely political, proving that Smith is less interested in justice and more interested in “getting Trump” through any means.
The filing also flagrantly flies in the face of the Department of Justice’s self-imposed “60-day Rule,” whichwhich is supposed to prevent themit from taking prosecutorial steps that could influence a vote so close to the election.
There would have been no legal consequence to Smith concurring with the defense that the case and all filings should be put entirely on hold until after the election.
But he refused.
Tall order
It is clear Smith has abandoned all pretense as a neutral and fair prosecutor, and instead has taken on the role of rabid zealot.
Remember: for all of Smith’s efforts to take down Trump through the legal system, he’s been shot down at almost every turn.
His Florida case has been tossed entirely.
The Supreme Court flatly rejected his claims that presidential immunity does not exist.
And yet, he returns to his public stage spewing more incendiary opinions as though they are facts in an effort to persuade — if not a jury, then the American public — that Donald Trump is a criminal.
Smith’s indictment still appears far out of line with the Supreme Courts’ immunity ruling, and it is likely that the High Court will strike down most of Smith’s charges — along with much of the lurid details he includes in his motion — if the case ever makes it back up for review.
It is a tall order for Smith to prove that most of Trump’s conduct was “unofficial” and not subject to presidential immunity.
While Smith is desperate to prove that Trump’s campaign activities were “unofficial acts,” there’s a good chance the Court won’t see it that way.
Trump’s belief that the election results were unfair is something that a president has the authority to communicate to the American people, whether they’re a candidate or not.
Statements regarding election integrity also have an impact on how foreign governments see the fairness of the American democratic system, and the authority to communicate messages to our foreign allies and enemies lies solely within the discretion of the president.
It’s not hard to imagine that Joe Biden — a lame-duck president — may have an opinion on the fairness of the upcoming election and may choose to communicate such thoughts to the American people.
The same analysis should apply here.
Big problem
Even if this case does make it to trial, Smith is still going to have a tough time proving Trump committed a crime.
In order to do so, he’s going to have to prove Trump’s “specific intent,” meaning Trump’s actual belief that he lost the election, a key element in this case.
The question of whether Trump “lost the election” is not as binary as Trump’s opponents want you to believe.
While Trump has famously refused to admit that he lost the 2020 election, his actions prove he accepted the outcome, however unfair he feels it may be.
We know that Trump turned over the keys to the White House and the nuclear suitcase on January 17.
Power was, in fact, peacefully transferred.
He also tried to call off the capital rioters with his tweet that was famously removed by Twitter.
But, through it all, Trump does not — and has never — believed that he fairly lost the election.
Whether you agree with Trump or not, his belief that the election results were improper may very well be genuine.
And that’s a big problem for Smith.
Smith needs to take his thumb off the scales of justice because he’s losing sight of Trump’s presumption of innocence and the effects his novel and dubious arguments may have on the election — in a case that’s still a long way from trial.
In some places, they call that election interference.
Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are military veterans, former federal prosecutors and current criminal defense attorneys. They are authors of the book “Woke Warriors.”