Ubiquitous
2024-10-12 02:05:01 UTC
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Permalinkelection. So instead, the special counsel has bent ordinary procedure
to get in one last shot, just weeks before voters go to the polls.
Smith has now dropped a 165-page doorstop of a filing in federal court,
on the issue of Trumps immunity from prosecution. Judge Tanya Chutkan
who suddenly claims not to care about the impending election despite
her earlier efforts to expedite the case to get it in before the very
same election, which got her reversed and chastised by the Supreme
Court duly complied with Smiths wishes, redacted out a few obvious
names (who ever might Arizona Governor [Redacted P-16] be?), and made
the rest public.
There are two headlines here. The immediate takeaway lies in the
revelations contained in Smiths oversize brief. (He asked the judge
for, and received, permission to file a brief that was 180 pages long,
four times the normal maximum.) We now have damning new details on
Trumps effort to pressure Vice-President Mike Pence to throw the
election his way, Trumps phone use and use of Twitter as the riot
unfolded, and his conversations with family members about efforts to
contest his electoral loss. The storys structure is the same as weve
long known, but the new details lend depth and dimension.
The larger, if less obvious, headline is that Smith has essentially
abandoned any pretense; hell bend any rule, switch up on any practice
so long as he gets to chip away at Trumps electoral prospects. At
this point, theres simply no defending Smiths 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 its neither a response
to nor an excuse for Smiths 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.)
Lets 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? Its worked for hundreds of years
in our courts.
Not here. Not when theres 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. Trumps team objected, and the
judge acknowledged that Smiths request to file first was procedurally
irregular moments before she ruled in Smiths favor, as shes done
at virtually every consequential turn.
Which brings us to the second point: Smiths proactive filing is
prejudicial to Trump, legally and politically. Its ironic. Smith has
complained throughout the case that Trumps 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 wholl see those allegations?
The voters, sure and also members of the jury pool.
And that brings us to our final point: Smiths conduct here violates
core DOJ principle and policy. The Justice Manual DOJs internal
bible, essentially contains a section titled Actions That May Have
an Impact on the Election. Now: Does Smiths 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.
Remember, Smith begged the judge to flip the rules on their head so he
could file this document first, and quickly any action, by any
reasonable definition with the election right around the corner.
Anyone who objected to James Comeys outrageous announcements about the
Hillary Clinton email investigation on the eve of the 2016 election
should feel the same about Smiths conduct now. Whats the distinction?
Both violated ordinary procedure to take public steps, shortly before
an election, that plainly would have an impact on that election.
Im going to hand this one over to one of DOJs most esteemed alums,
who explained it this way to the Justice Departments internal
watchdog: To me if it [an election] were 90 days off, and you think it
has a significant chance of impacting an election, unless theres a
reason you need to take that action now, you dont do it.
Those words were spoken by Sally Yates former deputy attorney
general, venerated career prosecutor, no fan of Trump (who
unceremoniously fired her in 2017), and liberal folk hero. As usual,
Yates is spot on. And her explanation conveys this indelible truth: If
prosecutors bend their principles depending on the identity of their
prey, then theyve got no principles at all.
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Let's go Brandon!