CNN senior legal analyst Elie Honig tore into Special Counsel Jack Smith over a lengthy, bombshell filing in the election interference case against former President Donald Trump.
In a New York Magazine column, Honig, a former prosecutor, accused Smith of “bending ordinary procedure” in order to drop a 165-page motion that contains numerous examples of how the Department of Justice believes Trump “resorted to crimes to stay in office,” making a “private criminal effort” to overturn the 2020 presidential election results.
“The larger, if less obvious, headline is that 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,” Honig wrote.
What’s so unusual about this motion , according to Honig, besides its length, is the fact that it was filed first, before the defense. Judge Tanya Chutkan acknowledged it was unusual to have the prosecution file first instead of responding to a defense motion, but ultimately sided with Smith’s request. Smith’s motion argues against Trump’s claims of presidential immunity.
Honig wrote:
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).
Honig argued the motion contains plenty of “damaging statements” that are prejudicial to Trump on two fronts: in both the presidential election and in a potential upcoming trial over his actions surrounding the Jan. 6 Capitol riot.
“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,” Honig wrote. “You know who’ll see those allegations? The voters, sure – and also members of the jury pool.”
