Jack Smith's evidence against Trump isn't "election interference." DATE: 2025-01-14 20:23:33
One can fairly argue that the Department of Justice has been overly cautious in prosecuting Donald Trump. But recent criticism that the DOJ has been too aggressivein its efforts to bring the former president to justice is simply off base.
Some critics have claimed that special counsel Jack Smith violated DOJ policy last week when he filed a brief in the district court in the Jan. 6 election interference case, a brief that District Judge Tanya Chutkan subsequently unsealed. On Friday, Chutkan took the next step, ordering unsealed the exhibits that Smith appended to his brief.
Already, one prominent former DOJ official, Jack Goldsmith, argued in the New York Times that Smith “has failed” to comply with “pertinent rules.” Meanwhile, a former federal prosecutor, Elie Honig, wrote that Smith “bent ordinary procedure to get in one last cheap shot.” Based on our experience as Department of Justice officials, we believe that these critics are wrong in their assessment of DOJ policy and norms.
The criticism centers around a DOJ policy that says prosecutors “may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” As in each election year, Attorney General Merrick Garland issued a memo in June reminding all DOJ personnel of this policy. In addition, federal prosecutors generally observe a norm known as the “60-day rule.” Although it is not a written rule and its parameters are imprecise, it is a practice described by DOJ Inspector General Michael Horowitz as guidance to prosecutors to “avoid public disclosure of investigative steps related to electoral matters or the return of indictments against a candidate for office within 60 days of a primary or general election.”
Advertisement Advertisement Advertisement AdvertisementIn our view, Jack Smith’s brief complied with both directives, and it’s not a close call.
Let’s remember how we got to this point. The original indictment related to Trump’s efforts to overturn the 2020 election culminating in the Jan. 6 attack on the Capitol was returned in August 2023. Smith’s recent filing was prompted by a series of events that began with Trump’s motion to dismiss the case last fall on the grounds of presidential immunity. The appeal worked its way up to the Supreme Court, which issued its landmark ruling on July 1, holding that a former president is absolutely immune from criminal prosecution for exercising “core constitutional powers”; presumptively immune for other official acts; and not immune for unofficial, or private, acts. For presumptively immune official acts, the government may rebut the presumption by showing that prosecution would pose “no ‘dangers of intrusion on the authority and functions of the Executive Branch.’ ” The Supreme Court instructed the district court to examine each of the government’s allegations on remand to determine “in the first instance” whether the alleged conduct was official or unofficial, and if official, whether the government can rebut the presumption of immunity. The majority directed the district court to engage in a “factbound analysis” “with the benefit of briefing” by the parties. It also ruled that the questions of immunity “must be addressed at the outset of a proceeding.”
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Read MoreBefore Chutkan set a briefing schedule, Smith obtained a superseding indictment, paring down the charges to remove allegations the Supreme Court held were absolutely immune. Although Smith simply could have struck these allegations without seeking a new indictment, he presented the case to a new grand jury to eliminate any concern that the indictment was tainted because the original grand jury may have been influenced by the inclusion of immune conduct. Hardly the conduct of a prosecutor hell-bent on crashing through the rules.
AdvertisementOnce Chutkan regained jurisdiction over the case, she did exactly what the Supreme Court told her to do (and what we have seen judges do over and over again after a remand from a higher court): She sought input from both parties and issued a briefing schedule. When Smith filed his motion for immunity determinations in accordance with the court-ordered briefing schedule, he filed it under seal to give Trump the opportunity to persuade the court to keep its contents from public view. The court rejected Trump’s argument, citing the “important presumption in favor of public access to all facets of a criminal case,” and dismissing Trump’s accusation that the government was engaging in “bad-faith partisan bias.”
Advertisement Advertisement AdvertisementNothing about Smith’s conduct implicates either the DOJ policy or the 60-day rule. The case was first indicted well outside the 60-day window. As was his right, the former president sought review of the district court’s denial of immunity, and after the Supreme Court ruled, Smith promptly—and again outside the 60-day window—obtained a superseding indictment. Smith then filed his immunity motion in accordance with both the directive of the Supreme Court and the schedule set by the district court. The Supreme Court did not remand with instructions to delay the required briefing and fact-bound analysis until after the election, as it could have.
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Some have compared Smith’s filing with the disclosure by FBI Director Jim Comey on Oct. 28, 2016, days before that year’s presidential election, informing Congress that the FBI had reopened its investigation into former Secretary of State Hillary Clinton’s use of a private email server after finding additional email messages on another computer. Comey’s statement was a discretionary decision that conflicted with a different DOJ practice—to neither confirm nor deny the existence of an investigation. And it suggested to the public, on a timeline Clinton had little opportunity to refute, that she might have committed crimes, even though she wasn’t being charged with any. The difference here is that Trump is a defendant in a case that is moving forward in the courts. Trump’s argument is tantamount to saying that there is never an acceptable time to prosecute him so long as he is a candidate for office. Taken to its logical conclusion, a complete prohibition on all proceedings in a pending criminal case would mean that defendants could run for office at all levels of government simply to derail their cases.
Advertisement Advertisement AdvertisementAs Garland explained earlier this year, the case is “in the hands of the judicial system, not in our hands.” It would have been highly unusual for Smith to ask the court to pause the case until after the election, and it would have been equally unusual for the lower court on remand to delay briefing for nearly five months. Either would be inconsistent with the public’s right to a speedy trial.
Has DOJ exercised too much caution in handling the case against Trump? Reasonable minds can differ. But is there any evidence it selected the timing of its actions to influence an election? Absolutely not.
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