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“U.S. prosecutors said Donald Trump was acting outside the scope of his duties as president when he pressured state officials and then-Vice President Mike Pence to try to overturn his 2020 election defeat, in a court filing made public on Wednesday… Prosecutors working with Special Counsel Jack Smith laid out a sweeping account of Trump's conduct following the 2020 election…
“The filing is meant to keep the federal criminal election subversion case against the Republican presidential candidate moving forward following a July U.S. Supreme Court ruling that former presidents have broad immunity from prosecution for their official actions in office… Prosecutors submitted the court filing [the previous] Thursday, but U.S. District Judge Tanya Chutkan had to approve proposed redactions before it was made public.” Reuters
Here’s our prior coverage of the case and the Supreme Court decision. The Flip Side
The left condemns Trump’s behavior, and is divided about the timing of the filing.
“The filing doesn’t change anything about the existing understanding of what happened in the weeks between Election Day 2020 and the riot, but it adds new information. Perhaps the most appalling detail concerns Trump’s reaction to news that Vice President Mike Pence had been evacuated from the Capitol because of a threat to his life. According to Smith, the president simply looked at the aide who delivered the news and said, ‘So what?’…
“Trump had long made clear that his top priority is loyalty… Pence failed the loyalty test, and he wasn’t just dead to Trump; Trump seemingly didn’t care whether he was dead. If this is how Trump treats a close ally, he leaves little doubt about how he’d treat anyone else. But to anyone who’s been paying attention these past several years, none of this information is at all surprising… The filing underscores how serious a threat to rule of law and American democracy Trump was and is.”
David A. Graham, The Atlantic
Some argue, “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? It’s worked for hundreds of years in our courts…
“Smith turned the well-established, thoroughly uncontroversial rules of criminal procedure on their head and asked Judge Chutkan for permission to file first… ‘But we need to know this stuff before we vote!’ is a nice bumper sticker, but it’s neither a response to nor an excuse for Smith’s 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)…
“Anyone who objected to James Comey’s outrageous announcements about the Hillary Clinton email investigation on the eve of the 2016 election should feel the same about Smith’s conduct now.”
Elie Honig, New York Magazine
Others note, “Smith, whose filing is part of an ongoing criminal case that is making its way to trial, had no control over the timing of the decision to make his document public — that was Chutkan’s choice. And the judge has made it clear that the election is of little concern to her as she attempts to get the case back on track after months of delay… Finally, we must all keep in mind that the timing of this is as we’re only this close to Election Day because of Trump’s motions that delayed things…
“If Smith had his druthers, he’d have presented his case to a jury more than six months ago. We’d have had a ruling on the matter, and while Trump would have likely still appealed, the time crunch he’s now whining about would have been a nonfactor. Instead, we’re in a position where Trump’s crimes are still being litigated. It is only because his legal strategy was a success that we’re seeing the evidence against him drop the month before the election.”
Hayes Brown, MSNBC
The right accuses both Smith and Chutkan of attempting to influence the election.
The right accuses both Smith and Chutkan of attempting to influence the election.
“The justices rapped [Smith] for ignoring a weighty question in his Jan. 6 indictment, ruling that a president is entitled to immunity for exercising ‘core constitutional powers.’ That decision requires a pretrial proceeding in which the trial judge sifts which of the allegedly criminal acts count as official, and ultimately ended any prospect of a trial before the election…
“A sober litigator would have stepped back, allowed the voters to render their judgment on Mr. Trump and his bad behavior, and regroup in November. Here’s what Mr. Smith did instead. He rushed to file a superseding indictment in August that alleged the same four crimes…
“He then requested the trial judge allow him to file an ‘oversized’ brief—up to 180 pages—laying out the government’s arguments against immunity, and asking her to unseal it. Judge Tanya Chutkan granted the requests, ignoring the Trump legal team’s opposition to a brief that was ‘quadruple the standard page limits’… That brief was made public on Wednesday, 34 days before the election. Which is the point.”
Kimberley A. Strassel, Wall Street Journal
“As a rule, we don’t get to see all the evidence until the trial begins. That’s intentional: It ensures that evidence is presented under controlled circumstances. The judge instructs the jury from the outset that the allegations are proof of nothing; that the defendant is presumed innocent; that the prosecutor bears the burden of proving the case… that the defense has a right to object to testimony and documents…
“In a normal case, prosecutors do not want to publicize their proof prior to trial. Especially if they’ve been claiming that the defendant is a dangerous threat to democracy, they want to hold the evidence and identities of witnesses close to the vest — in order to safeguard the integrity of the process…
“The point of Smith’s tome, and the publication of it by the Obama-appointed Chutkan, is to get the J6 evidence, chapter and verse, into the hands of the media–Democrat complex and the Harris campaign. Waiting was not an option.”
Andrew C. McCarthy, National Review
“Judge Chutkan has proven far too motivated in the case. Indeed, many thought that she should have recused herself given her statement from a sentencing hearing of a Jan. 6 rioter in 2022. Chutkan said that the rioters ‘were there in fealty, in loyalty, to one man — not to the Constitution.’ She added then ‘[i]t’s a blind loyalty to one person who, by the way, remains free to this day.’ That ‘one person’ was then brought to her courtroom for trial by Smith…
“Even Chutkin herself acknowledged that Smith’s request [to file a preemptive brief] was ‘procedurally irregular,’ but she still allowed it. This was a premature exercise that would ordinarily occur months later, after defense filings. She could have scheduled such filings just a few weeks from now. She could have easily kept the filing under seal to avoid the appearance of political machinations. But the political effect appears to be the point.”
Jonathan Turley, The Hill
