Trump Jan. 6 trial: Special counsel Jack Smith’s trial motion, explained.
Special counsel Jack Smith filed a motion Wednesday in the Washington prosecution of Donald Trump for trying to overturn the 2020 election, a motion whose larger significance might be easily missed. What Smith is asking U.S. district court Judge Tanya Chutkan to do is significant not only legally but politically as well.
On its surface, Smith’s motion asked the court only to prevent Trump from raising matters during the trial that have nothing to do with determining whether he is guilty of committing the offenses with which he is charged.
The motion seeks pretrial evidentiary rulings from the judge to ensure that Trump can’t politicize his trial by introducing evidence that would turn a courtroom into a circus. The former president has already begun to attempt this with statements that are playing a large part in his campaign to return to the White House but otherwise have no bearing on the case at hand.
Trump offered a striking example of the kind of thing Smith wants barred from the trial in a Christmas Eve post on Truth Social:
THEY SPIED ON MY CAMPAIGN, LIED TO CONGRESS, CHEATED ON FISA, RIGGED A PRESIDENTIAL ELECTION. … JOE BIDEN’S MISFITS & THUGS, LIKE DERANGED JACK SMITH, ARE COMING AFTER ME, AT LEVELS OF PERSECUTION NEVER SEEN BEFORE IN OUR COUNTRY??? IT’S CALLED ELECTION INTERFERENCE.
As the special counsel’s motion put it, Trump’s defense should be barred from “raising irrelevant political issues or arguments in front of the jury. … In addition to being wrong, these allegations are irrelevant to the jury’s determination of the defendant’s guilt or innocence, would be prejudicial if presented to the jury, and must be excluded.”
AdvertisementWhat counts as “irrelevant political issues or arguments”? Well, Smith wants the judge to bar Trump from offering 10 different forms of evidence at the trial, virtually all of them foreshadowed by Trump’s messaging to the public.
Advertisement Advertisement AdvertisementFor example, Smith noted, “The defendant has signaled his intention to blame the events of January 6 on the Capitol Police, National Guard, and the District’s Mayor.” He asked Chutkan to bar Trump from doing so during his trial. As Smith writes:
A bank robber cannot defend himself by blaming the bank’s security guard for failing to stop him … and the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended.
Smith also wants the court to preclude Trump’s claims of government’s “coordination with the Biden Administration” to bring the case, at least unless Trump can produce some minimal evidence to justify raising the claim. A grand jury of 23 ordinary citizens filed this indictment against Trump based on evidence—the president’s administration did not.
AdvertisementIn addition, Smith’s motion alleges that “the defendant has indicated that he intends to introduce evidence of foreign influence in the 2020 presidential election to show that (1) he was personally tricked by foreign disinformation, and/or (2) the January 6 riot resulted from ‘efforts by foreign actors to influence public opinion.’ ”
“Such evidence,” Smith notes, “should be excluded as an irrelevant and confusing sideshow.”
AdvertisementAs a matter of law, Smith is clearly right. Parties are not permitted to bring before trial juries claims out of whole cloth. Lawyers can engage only in what scholars call “fact-based persuasion.”
And no facts have surfaced to support Trump’s self-serving claims that someone else is to blame for Jan. 6, that President Joe Biden has anything to do with the prosecution, or that foreign actors had anything to do with the 2020 election results.
AdvertisementBeyond the legalities, however, Smith has told us three important things about his larger project and strategy.
First, he’s a man in a hurry to ensure the fair administration of justice. Trump, on the other hand, wants to delay his court date as long as possible. Smith’s new motion suggests that he hopes the election interference case can quickly overcome the former president’s stalling tactics and be ready to go to trial the moment appellate courts deny Trump’s claim, as they surely will, that he is immune from prosecution as a former president.
AdvertisementSecond, the motion told us that even while the trial is on hold, Smith intends to take the initiative and remain the lead in the courtroom. That’s what great trial lawyers do at every stage of a court proceeding. Trump excels at surviving unfavorable situations by introducing chaos into them—but the motion shows that Smith will not let him do that here.
Advertisement Advertisement AdvertisementThird, and most important, Smith is saying loud and clear that he’s got Trump’s number. The special counsel is telling Trump and the rest of us that he (Smith) understands who Trump is and the meaning of his trial for a rule-of-law society.
As Harvard historian Jill Lepore suggests, the D.C. prosecution has monumental significance for the current state of America, and Wednesday’s motion shows it. The case is about truth vs. disinformation, proof vs. propaganda, and the difference between a court of law and the court of public opinion.
In the political world that Trump inhabits—a world of grievance, blame, and made-up messaging whose repetition sinks them into the public consciousness—Trump is a master. But in courtrooms where facts matter, Trump is a perpetual loser.
AdvertisementTrump knows from vast experience that the one place where the false stories to which he is devoted do not fly is in court. And Jack Smith knows that, by hook or by crook, Trump will try to get those false stories before a jury. It’s his only way out.
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Read MoreThe former president needs fraudulent messaging to lead one or more jurors to hang the jury, even in the face of overwhelming proof of Trump’s guilt. Stopping that unlawful signaling is why Smith brought his motion Wednesday.
Again, however, that’s just the ground game. What’s really going on here is a kind of morality play of a much larger sort. Smith is enforcing the legal system’s rules on a man who insists that he doesn’t have to abide by them.
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It’s obvious why Trump makes his claims to put himself above the law. He seeks the unlimited power of a “dictator on Day 1.” In what lawyer and commentator David M. Crane calls “the age of strongmen,” leaders like Vladimir Putin or Viktor Orban have virtually complete freedom to serve their own interests and those of their friends at the expense of the freedom of others, regardless of whatever laws may exist on paper to preclude such behavior.
By contrast, the rules of a constitutional republic, top to bottom, stand in the way of that power.
So, with Jack Smith’s new motion to enforce established evidentiary procedures and preempt their violation, we shouldn’t miss the forest for the trees. He is speaking not just to Chutkan but to the American public. He is reminding us that rules and their enforcement, even the kind of procedural rules that govern the stories that can be told in trials, are what truly make a constitutional republic function and thrive.
Smith’s motion Wednesday captures the battle we’re all immersed in right now: one between a rule-of-law society and a man bent on destroying it. It shows the special counsel’s resolve in the fight, and that he is in a hurry to do the criminal justice system’s part in getting on with it.
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