One Month Before Election Day, Judge Chutkan Allows Jack Smith to Broadcast His Evidence

With 34 days to go before Election Day, and with early voting already under way in states that will decide the presidential contest, Judge Tanya Chutkan has granted Biden-Harris Justice Department special counsel Jack Smith’s motion to publicly broadcast the evidence he would offer at trial in the 2020 election-interference case against the Republican nominee, former President Donald Trump.

The ruling is no surprise — indeed, Rich and I anticipated it on the podcast last week.

Smith’s two federal indictments against Trump — the election-interference case before Judge Chutkan in Washington, D.C., and the Mar-a-Lago documents case before Judge Aileen Cannon in Florida — were strategically timed to influence the outcome of the 2024 election. In this endeavor, Smith has been supported by Chutkan, an Obama appointee whose hostility to Trump was evident in her commentary during some of the Capitol-riot prosecutions over which she presided.

Smith has argued, preposterously, that “the public” — by which he means Democrats — has a right to a speedy trial because of the importance of the Trump cases. To the contrary, the Constitution gives only the defendant a speedy-trial right, which defendants may and frequently do waive if they need more time to prepare their defense (also a constitutional right). The public has an interest in a just trial, not a prompt one — and there is nothing just about prosecutors’ filing four indictments against their party’s political rival with the objective of trying him before Election Day in a manner that gives him inadequate time to prepare for trial, let alone prepare for four trials. If prosecutors tried to do such a thing to a hardened criminal or a terrorist, the Lawyer Left would be up in arms over the shredding of due process. And as for the asserted importance of the cases, it lies in their political consequence (if any), which is a factor that prosecutors and judges are not supposed to weigh; there are unambiguous Justice Department rules to this effect.

For the umpteenth time, this is not to minimize Trump’s activities in connection with the 2020 election — the stop-the-steal scheme and the Capitol riot (for which I’ve repeatedly said Trump was rightly impeached, and should have been convicted and disqualified from future office; and over which I’ve repeatedly argued that Republicans were nuts to nominate him, as opposed to a more nationally viable candidate who, by now, would be ten points up against Kamala Harris). It is to stress that is not a legitimate law-enforcement or judicial priority to force a pre-election trial of those charges.

Even if politics were not supposed to be an irrelevant consideration for judges and prosecutors, moreover, the fact is that Americans witnessed the heavily covered events between the 2020 election and January 6 in real time. These same events were then the subject of heavily covered impeachment proceedings. After that, these same events were exhaustively covered, yet again, in the slickly produced television presentations of the House January 6 Committee. The public is well aware of the germane underlying facts and the degree to which they shed light on Donald Trump’s suitability, or lack thereof, for the presidency.

Outside the criminal-justice process, people may and should form views about Trump based on whatever considerations and whatever timelines they see fit. But once he was formally accused as an indicted defendant, the Constitution vested him with due-process rights and a presumption of innocence. In the four corners of the criminal-justice process, Trump’s due-process rights easily outweigh the political desire of partisan Democrats to conduct criminal proceedings that might advantage them in an election.

Smith’s plan to rush Trump to trial prior to Election Day (he was hoping to start in March) hit major snags because he underestimated the complexities of criminally charging a former president based on acts that took place during that former president’s term in office. This enabled Trump to argue (quite colorably, the Supreme Court eventually held) that he was immune from prosecution.

Although Chutkan tried to help Smith by ruling promptly, in late 2023, that Trump had no immunity, this ruling was appealable pretrial. Because the trial court loses jurisdiction over a case while it is on appeal to higher courts, Chutkan could not act on the case until the Supreme Court formally returned jurisdiction to her in early August, following its July 1 ruling that Trump has at least presumptive immunity for all official presidential acts, and absolute immunity for official acts at the core of the chief executive’s Article II powers (a conclusion that led the Court to invalidate part of Smith’s case).

In remanding the case to her court, the justices instructed Chutkan to conduct a thorough review of the charges and the acts during Trump’s presidency that Smith planned to prove. The point of this exercise is to sort out which acts were private, as to which there is no immunity, and which acts were official, as to which Trump can validly claim immunity. As to the official acts, Chutkan would further have to assess which are core presidential acts that may not be charged as crimes or used as evidence, and which are acts outside the core but within the outer ambit of executive authority. Regarding the latter, Trump would have at least presumptive immunity, but Smith would be given an opportunity to overcome the presumption. For that inquire, the Court prescribed a demanding test: As to each disputed act, Smith would have to show that applying a criminal prohibition would pose no dangers of intrusion on the authority and functions of the executive branch.

No matter how Chutkan might rule on efforts by Smith to overcome Trump’s immunity claims (and I assume she would be quite sympathetic), her ruling would be appealed — again, immunity is one of the few issues for which federal criminal law permits pretrial appeals.

As a practical matter, then, the need to go through this inquiry made it impossible to conduct a trial of Trump prior to Election Day. Besides the inevitability of more immunity appeals, there are several significant pretrial motions and jury-selection issues that have to be decided before a trial could take place — months of work. There will also be litigation over whether Smith’s appointment as special counsel is constitutionally invalid — the issue that led Judge Chutkan to dismiss the Florida indictment. Although Smith has a far better chance of prevailing on that dispute in Washington (because of favorable D.C. Circuit precedent that was not binding in Florida), the issue could take over a year to resolve — particularly if it lands in the Supreme Court, which is foreseeable.

All that said, though, the Supreme Court’s immunity ruling gave Smith and Chutkan an opportunity. The instruction that Chutkan thoroughly review Smith’s case provided a pretext for Chutkan to require Smith to extensively disclose his case — i.e., to recite everything he intends to prove — and for Smith to ask that Chutkan allow him to put that extraordinary submission on the public record. So no, the prosecutor and judge cannot get the case to trial, as they so ardently hoped to do; but Smith has been given the best substitute he can hope for: A book-length recitation of the case against Trump, injected into public record and thus into the campaign less than five weeks before Election Day — and while people are already voting.

In some ways, even though no conviction will result from it, Smith’s public submission is better than a trial. Trials are messy and unpredictable; prosecutors’ written descriptions of what they hope to prove are often compelling and damning. That is why, at a trial, the judge routinely instructs the jury that an indictment and proffers by a prosecutor are only allegations; they are not evidence, they are not subject to cross-examination, and they prove nothing. Here, by contrast, there will be no cautionary instructions. Smith’s allegations will be used by Democrats and repeated by the media as if they are established fact, the conclusions of a searching, exacting probe by a Justice Department special counsel.

Will this move the electoral needle? Hard to say. I believe people have already made up their minds about how the Capitol riot and the events that led up to it factor into how they will vote — i.e., what it says about Trump’s fitness, and how such concerns weigh against fears about a Harris-Walz administration. Many voters are rightly repulsed by Trump’s actions; many other voters are rightly repulsed by the politicization of law enforcement and the unabashed effort of the incumbent administration to exploit its control of the Justice Department in hopes of swinging the election in the Democrats’ favor. But I sense that people who are animated by these considerations have already made up their minds. More information from the prosecutor, rehashing (in more refined detail, no doubt) events that have been covered ad nauseam, is probably not going to make a meaningful difference.

That said, if anything is clear from the tag-team Governor Tim Walz (D., Minn.) played with the CBS moderators (D., Media) at Tuesday night’s vice-presidential debate, it is that Democrats are running on January 6. It’s not like they can run on the Biden-Harris record. Hence, expect the coverage of Smith’s tome to be intensive.

Will that convince voters that January 6 outweighs the collapse of border security, the influx of millions of illegal aliens and the strains they’ve imposed on America’s cities, the Afghanistan debacle, the raging wars that have followed repeated Biden-Harris failures of deterrence, Harris’s culpability in the scheme to hide Biden’s mental and physical deterioration from voters, and Harris’s history of left-wing radicalism? Well, that’s the question, isn’t it? I wish I knew the answer.