Special Counsel Jack Smith recently filed a major motion arguing that the Supreme Court's immunity decision should not derail the D.C. election case against Donald Trump.
In a case that is already on hold indefinitely until after the election, the timing and tone of his filing serve no necessary legal purpose and are instead purely political, showing that Smith is concerned over justice. , has proven that it is interested in “getting Trump” by any means possible. means.
The filing also flagrantly violates the Justice Department's self-imposed “60-day rule,'' which supposedly prevents prosecutors from taking action that could affect votes in the upcoming election. It is.
There would have been no legal repercussions for Mr. Smith, who agreed with the defense that the case and all applications should be stayed completely until after the election.
But he refused.
high order
It is clear that Smith has abandoned all pretense of being a neutral and impartial prosecutor and has instead assumed the role of a fanatical fanatic.
Please remember. Despite all of Smith's efforts to defeat Trump through the legal system, he has been shot down at nearly every turn.
His Florida case was completely thrown out.
The Supreme Court flatly rejected his argument that presidential privilege does not exist.
And yet he returned to public life and spouted even more inflammatory opinions as if they were facts, convincing the American people, if not the jury, that Donald Trump is a criminal. I'm trying.
Mr. Smith's indictment still appears to be at a significant departure from the Supreme Court's immunity decision, and if a case were to go ahead, the high court would be able to revoke most of Mr. Smith's charges and many of the ludicrous details that Mr. Smith included in his motion. is likely to be canceled. Back up for review.
For Smith, proving that most of Trump's actions were “unofficial” and not subject to presidential immunity will be a difficult task.
Mr. Smith is bent on proving Mr. Trump's campaign was an “unofficial act,” but there's a good chance the courts won't see it that way.
Trump has the power to communicate his belief to the American people, whether he is a candidate or not, that the election results were unfair.
Election integrity statements also affect how foreign governments view the fairness of America's democratic system, and the power to convey messages to foreign allies and adversaries is solely within the president's discretion.
It's not hard to imagine that Joe Biden, a lame-duck president, has opinions about the fairness of the upcoming election and might choose to communicate those thoughts to the American people.
The same analysis should be applied here.
big problem
Even if the case goes to trial, Mr. Smith would still have a hard time proving that Mr. Trump committed a crime.
To do so, they would need to prove Trump's “specific intent,” or his actual belief that he lost the election, a key element of the case.
The question of whether Trump “lost the election” is not as binary as Trump's opponents would like you to believe.
Trump famously refuses to admit he lost the 2020 election, but his actions demonstrate that he has accepted the result, even if he feels it is unfair.
It is known that President Trump handed over the keys to the White House and the nuclear suitcase on January 17th.
In fact, power was transferred peacefully.
He also attempted to quell the riots in the capital in a tweet that was famously deleted by Twitter.
But through it all, Trump did not, and still does not, believe that he lost the election fairly.
Whether you agree with Trump or not, his belief that the election results were improper is very likely genuine.
And that's a big problem for Smith.
Mr. Smith needs to take his thumb off the scales of justice as he loses sight of Mr. Trump's presumption of innocence and the electoral impact of his novel and dubious claims in a case that is still far from trial.
In some quarters, it's called election interference.
Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are military veterans, former federal prosecutors, and current criminal defense attorneys. They are the authors of the book “Woke Warriors”.
