With his lawfare efforts collapsing, Special Counsel Jack Smith seized on what Politico described as his “last chance before Election Day” to submit a 165-page filing smearing former President Donald Trump. Unsealed Wednesday, the filing serves no real purpose except to create fodder for Democrats ahead of the election.
Judge Tanya Chutkan made Smith’s 165-page filing public on Wednesday, just days after she granted Smith’s request to file the “oversized” brief. Filings, per ABC News, “are normally limited to 45 pages.”
The filing alleges that Trump and his “co-conspirators'” made “knowingly false claims of election fraud,” which were then used in “furtherance of three conspiracies.” Allegedly, the “conspiracies” include “a conspiracy to interfere with the federal government function by which the nation collects and counts election results … a conspiracy to obstruct the official proceeding in which Congress certifies the legitimate results of the presidential election … and a conspiracy against the rights of millions of Americans to vote and have their votes counted.”
The crux of Smith’s filing is that Trump used “false claims of election fraud to disrupt the electoral process.”
CNN senior legal analyst Elie Honig said, “There are a couple of unusual things about the way this happened.”
“So first of all, ordinarily when it comes time for motions, the defense goes first,” Honig said. “Here, Jack Smith said a few weeks ago, ‘Judge Chutkan, we want to go first.’ And Judge Chutkan actually said, ‘Well, that’s quite unusual,’ but she let them go first. And the effect of that now is we essentially have Jack Smith’s case at least on paper, at least the parts that have not been redacted, 30-something days before the election, whereas we might not otherwise have had it.”
The brief comes after Smith filed a superseding indictment against Trump in August, arguing in part that Trump’s First Amendment right to question the outcome of an election created “mistrust and anger” and “erode[d] public faith in the administration of the election.” The superseding indictment followed the Supreme Court’s July ruling that found a president has “absolute immunity” for “actions within his conclusive and preclusive constitutional authority” and “at least presumptive immunity” for all “official acts.” The Supreme Court remanded several questions relating to Smith’s initial indictment against Trump back to the lower court to determine whether Trump’s actions constituted official acts.
Trump’s lawyers had argued that the government “aims to proffer their untested and biased views to the Court and the public as if they are conclusive” and that “it’s incredibly unfair [for Smith to file his oversized brief] in the sense that they’re able to put [it] in the public record at this very sensitive time in our nation’s history.”
Trump’s lawyers also argued, according to Chutkan’s ruling, that “the brief would run afoul of the Justice Manual, which prohibits federal prosecutors from ‘select[ing] the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”
Chutkan said that the “court need not address the substance of those claims.”
“Defendant does not explain how those putative violations cause him legal prejudice in this case, nor how this court is bound by or has jurisdiction to enforce Department of Justice policy,” Chutkan wrote.
In unsealing the filing on Wednesday, Chutkan accused Trump’s lawyers of engaging in “bad-faith partisan bias.”
“These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand,” Chutkan wrote. “Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case.”
But Smith’s filing does affect an election, as Trump’s team argues.
Smith’s filing comes just in time for the Harris-Walz campaign to try and make Jan. 6 a top campaign issue. Vice President Kamala Harris made a post on X about Jan. 6 just hours before the filing was unsealed.
“On January 6, the former president incited an attack on our nation’s democracy because he didn’t like the outcome of the election,” Harris said in a post on X. “If you stand for country, democracy, and the rule of law — our campaign has a place for you.”
It also doesn’t hurt that Smith’s filing was conveniently unsealed hours after Minnesota Gov. Tim Walz bombed in the vice presidential debate against Ohio Sen. J.D. Vance.
Smith had to walk a fine line in creating this filing after the Supreme Court shot down his earlier lawfare attempts. That’s to say, the high court could once again squash Smith’s lawfare efforts if the charges he brought against Trump impinged on the established presidential immunity guidelines.
But Smith doesn’t care whether the substance of his motion is just, accurate, or even legal, because it’s never been about the rule of law — it’s always been about interfering in the election.