Jack Smith is rushing to prosecute former President Donald Trump for the events of Jan. 6 so that the American people can have the benefit of his evidence, and the views of the jury, before they vote in November. This rush violates Justice Department rules. The Supreme Court now faces the question whether it too will be a party to this rush and, if not, how it will avoid it.
The Rush To Trial
When Smith sought certiorari before judgment in the immunity case back in December 2023, he argued that early review by the Supreme Court was needed for the following reason: “It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.” The brief added that “if this case proceeds through the ordinary—and even a highly expedited—appellate process, it is unclear whether this Court would be able to hear and resolve the threshold immunity issues during its current Term.” That would mean, in turn, that the then-scheduled March 4 trial date would not be met—a date, Smith argued quoting the trial court judge, that was needed to “ensure [fulfillment of] the public’s interest in seeing this case resolved in a timely manner.”
What is the hurry? Benjamin Wittes provided a candid answer:
If you’re smelling an elephant in the room, your nose is not deceiving you. The government … cannot here articulate what is plainly animating the urgency of its brief: the November presidential election. Indeed, the brief does not mention the November election. It does not mention that Trump is a candidate. And thus does not mention that Trump could become president once again.
As a federal prosecutor, Jack Smith is not allowed to say the thing that is plainly—and rightly—on his mind: that it is a paramount government and public interest to bring this matter to trial before the public has to vote on whether to put the defendant back in power.
To say that, after all, would be to intermingle the non-political prosecutorial interest in prosecuting past conduct by a former president with the active urging of the Supreme Court to facilitate the incumbent administration’s efforts to bring its principal political opponent to trial in time [to] impact voter choice in a future election.
And so Smith cannot articulate the concept with which every word of his brief is pregnant: that this criminal process is an attempt to protect American democracy from Donald Trump in a prospective sense. Smith is allowed to state the democracy-protection mission of the Jan. 6 indictment—quite baldly, really—if he does so in a backward-looking manner. Indeed, the very first sentence of his statement of the case reads: “This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but [not] convicted before the criminal proceedings begin.” And he is allowed to urge that the court upend the normal appellate process to ensure speed. But in articulating why that speed is so essential, he has to revert to highly generalized bromides about the public’s interest in a speedy trial. He’s not allowed to speak the obvious truth: that punishing Trump’s past crimes is a means of protecting American democracy against his future crimes.
And Smith is not allowed to say something else he quite obviously means: that a speedy trial is essential because the public is entitled to make an informed decision about whether a major party nominee for president committed crimes against democracy before deciding whom to vote for.
I find Wittes’s reasoning about Smith’s thinking plausible. Others have also concluded that the November election is motivating Smith to move quickly. Former prosecutor Elie Honig says that Jack Smith in the Jan. 6 case “is possessed by his desire to try Donald Trump before the approaching November 5, 2024, crucible.” In addition to the evidence in the certiorari petition before judgment noted by Wittes, Honig cites Smith’s original request for a January 2024 trial date, five months after indictment. Honig says this was “an absurd request given that the defense team must review over 13 million pages of documentary evidence and thousands of hours of video footage provided by prosecutors,” and given that most federal conspiracy defendants get years to prepare for trial, and that the typical Jan. 6 defendant received much more time than Trump to prepare for trial.
Justice Department Rules
If this were any other defendant than Donald Trump, the rush to trial—which cannot possibly give the Trump legal team adequate time to prepare its defense—would be deemed wildly unfair. Prosecutors and judges typically give defendants significantly more temporal leeway in trials of lesser magnitude with less severe charges.
Smith’s rush to trial appears to violate Section 9-85.500 of the Justice Department’s Justice Manual, which contains rules and policies that purportedly bind prosecutors, and which the special counsel regulations oblige Smith to follow. Section 9-85.500 reads (with emphasis added):
Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.
Attorney General Merrick Garland expanded on these points in a strongly worded May 2022 Memorandum on Election Year Sensitivities.
Smith’s timing decisions clearly have a “purpose of affecting” the presidential election, at least in the sense of wanting the American people to have the benefit of his evidence and the jury’s verdict before voting in November. Wittes defends this rationale:
I don’t think it is a grave threat to democracy to acknowledge candidly that in a case in which a former president stands accused of trying to overthrow the constitutional order by fraud and violence alike, one of the reasons a speedy trial is essential is so that voters can have the benefit of the trial outcome before voting on whether to restore to him the powers that would, among other things, let him obviate the case’s existence.
Whether or not Smith’s actions are a grave threat to democracy (more on that below), this rationale clearly violates the Justice Department rule. As Honig asks: “Don’t prosecutors defy [Section 9-85.500] if they’re concerned about what voters know about a candidate, and when and how that might influence their votes? God knows, prosecutors have almost unimaginable power as is, even when they stay in their lane. Who appointed Jack Smith ruler of what American voters must know before they head to the polls?” At a minimum, Smith’s actions clearly raise the “perception of an issue under” Section 9-85.500, which requires Smith to consult the Public Integrity Section. One wonders if he did so, and, if so, what the Public Integrity Section and top Justice Department officials said to allow him to proceed.
Smith could try to elide the rule, which says only that “the” (emphasis added) purpose of the prosecutorial decision cannot be to affect an election. Perhaps Smith is trying to affect the election, but that is not his only or his main purpose. Maybe Smith also wants to ensure that Trump can be tried and convicted before he can become president and end the criminal case against him. “The problem with this rationale,” Honig notes, “is that it implicitly holds that Smith’s job is to stop Trump from becoming president again so Trump won’t gain the power to throw out the cases. But if Smith’s goal is to prevent his subject from winning an election, that’s straight-up, blood-and-guts political.” Moreover, this interpretation of the rule would allow any prosecutor to ignore the rule, since a prosecutor can always find a purpose to take an investigative step that will impact an election other than affecting an election.
In a sense, the rule is a formality, and ultimately irrelevant. What matters is that Smith’s timing decisions are influenced by the election and, ultimately, by politics and political outcomes. And that is wrong. Whether he technically complies with or violates the rule, “the reality [is] that the criminal law and the political system are in an iterative dialogue with one another here about how to shield our democracy from the menace of [Trump] as he faces trial for past abuses of the presidency even while seeking the office once again,” Wittes rightly says.
Do the Ends Justify the Means?
Opinion polls show that Trump will be damaged, and that Joe Biden will benefit, if Biden’s Justice Department convicts Trump of a crime before the election. Maybe you think that preventing the existential threat of Trump’s return to the presidency justifies violating Justice Department rules and the normal rules of fairness to a defendant. If the reelection of Trump means the end of democracy, or the rule of law, perhaps violating a Justice Department rule is a small price to pay.
I am well aware of the dangers of a second Trump presidency—indeed, I wrote a book about it.