Jack Smith’s Keeping Busy Over the Holiday Season!
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This is Totally Normal Quote of the Day, a feature highlighting a statement from the news that exemplifies just how extremely normal everything has become.
“Much as the defendant would like it otherwise, this trial should be about the facts and the law, not politics.” —Jack Smith, special counsel, in a new motion filed in the federal election interference case.
While most of us are busy transforming into couches during the holiday slump between Christmas and New Year’s, special counsel Jack Smith is staying busy at work. He filed a new motion Wednesday asking Judge Tanya Chutkan to prevent Trump from “injecting politics” into his federal election interference trial.
“The defendant has made clear his intent to introduce evidence and make arguments that are improper—whether because they have no bearing on his guilt or innocence, are otherwise irrelevant, or are substantially more prejudicial than probative,” wrote Smith. “The Court should exclude them.”
Smith seems to be anticipating that Trump’s legal team plans to argue that the whole trial itself is unjust political persecution.
That probably won’t fly as a legal strategy, in any case. As Slate’s Ben Mathis-Lilley wrote earlier this year:
Are Trump’s attorneys allowed to suggest that jurors vote not guilty because they’re uncomfortable with the timing of the trial or its potential effect on the election?
No. Juries in the United States are instructed only to consider whether the prosecution has proved its case with the facts presented, rather than to consider engaging in “nullification,” i.e., voting based on whether they think a given law is fair or a given prosecution is a good use of the government’s time.
U.S. courts have been emphatic, most significantly in the 1895 Supreme Court case Sparf v. United States, in ruling that juries do not have an intrinsic right to consider nullification—or to be informed about it. Trump’s lawyers will almost certainly not be allowed to argue that he’s being prosecuted over an issue that should be left to voters, or raise the idea that he is being singled out because Democrats don’t like him.
But given the former president’s rhetoric outside the courtroom, it seems pretty likely he and his team will try to hint at those political arguments in a more indirect way. There is also historical precedent for it—during the 1969–70 Chicago Seven trial, for example, an attorney for anti-war protestors who had been sued by the Department of Justice argued that they were being targeted by an oppressive government. That attorney was convicted of contempt of court, but those convictions and his clients’ guilty verdicts were eventually overturned.
“A flat-out argument that the prosecution is politically motivated would likely be shut down by the court, but any defense counsel worth her salt will find ways to raise this suggestion before the jury,” Columbia University Law School’s Daniel Richman told Slate back in September. “One way might be in cross-examination of government witnesses that suggests their testimony is biased because it’s politically motivated. Bias impeachment is foundational, and indeed, at some level, constitutionally protected, and counsel may therefore be allowed considerable leeway.”
Still, Smith is apparently doing what he can to keep those arguments out of the courtroom. In the 20-page filing, he lays out specific arguments that the former president should be banned from making during trial. At the top of the list is preventing Trump’s lawyers from arguing that he’s being politically targeted by the Biden administration and that the First Amendment gives him immunity from prosecution. “These allegations are irrelevant to the jury’s determination of the defendant’s guilt or innocence,” Smith writes.
(About that whole immunity thing—the whole election interference trial is currently paused while an appeals court weighs Trump’s claim that he has absolute immunity from prosecution for actions he took while he was president. The court is scheduled to hear oral argument on Jan. 9)
Smith also does not want Trump to mention any of the consequences he may face as a result of his criminal prosecution, including the burden of the trial itself. “The principle that juries are not to consider the consequences of their verdicts is a reflection of the basic division of labor in our legal system between judge and jury,” wrote Smith. Allowing such statements “invites jury confusion and nullification and is thus prejudicial to the jury’s determination of his guilt or innocence.”
Another argument Smith wants to get ahead of is Trump arguing that the Jan. 6, 2021, insurrection should be blamed on Capitol Police, the National Guard, and the Washington, D.C., mayor. (The Capitol Police Board, a group made up of the House Sergeant at Arms, the Senate Sergeant at Arms, and the Architect of the Capitol, is responsible for Capitol security.)
It’s not exactly clear when Judge Chutkan will rule on Smith’s latest motion given that the case is currently paused. She has a growing list of filings to decide on, including a filing from Trump’s lawyers seeking information on “informants and other undercover operatives” in the Jan. 6 insurrection at the Capitol.
