Jack Smith, Comparing Trump to a ‘Bank Robber,’ Seeks To Bar Him From Criticizing Prosecution in Front of Jury, Cites Fear of ‘Nullification’

Special Counsel Jack Smith’s sweeping request, made in a filing today, that President Trump be barred from making the case to a jury that his prosecution is political appears set to roil a case that is otherwise on freeze frame. The filing to Judge Tanya Chutkan comes as the criminal case against Mr. Trump for efforts to overturn the 2020 presidential election is suspended. It awaits appellate resolution of the question of whether the immunities of the presidency and the prohibition of double jeopardy preclude Mr. Smith’s case. Mr. Smith’s motion asserts that Mr. Trump is attempting to “inject into this case partisan political attacks and irrelevant and prejudicial issues that have no place in a jury trial.” It warns Judge Chutkan of Mr. Trump’s aspiration to “turn the courtroom into a forum in which he propagates irrelevant disinformation.”Mr. Trump has offered prolix denunciations of Mr. Smith, remarking, again, on Tuesday that the prosecution of him is political. “Biden’s Flunky, Deranged Jack Smith, should go to HELL,” he wrote on his social media network, Truth Social. “He is helping his Corrupt and Incompetent President to destroy America through Weaponization and ELECTION INTERFERENCE! Smith is a Crooked Prosecutor who shouldn’t even be allowed to be in the position he is in—It is Prosecutorial Misconduct.” The former president’s arguments, Mr. Smith writes to Judge Chutkan, are “baseless political claims” and “evidence or argument that serves only to support a jury nullification argument has no relevance to guilt or innocence and must be excluded” from presentation to the jury. Nullification is litigation-speak for when a jury returns an acquittal regardless of whether it believes the defendant is guilty. The most famous such incident could be the acquittal of O.J. Simpson in 1995.The special counsel asks Judge Chutkan to bar Mr. Trump from “introducing evidence, making arguments, or framing questions to advance a theory of selective or vindictive prosecution.” This line of argument, Mr. Smith maintains, is “irrelevant to the jury’s determination” of Mr. Trump’s guilt or innocence. This motion, unlike a gag order, covers evidence submitted to the jury, not out-of-court statements. Mr. Smith’s position is that if Judge Chutkan rules that his prosecution is neither vindictive or selective — Mr. Trump has formally made that argument, and its resolution is pending — then the 45th president should be barred from making that case to the jury. He particularly wants to block references to the “Injustice Department,” and the “Biden Indictment.”The prosecutor asserts that “rhetoric that may be acceptable on the campaign trail but not in a trial” should not be heard by a jury of Mr. Trump’s peers. His concern is that language imported from the “political arena” risks jury nullification, which entails the rejection of the “legal standards governing the jury’s determination of guilt or innocence” in favor of juridical freelancing. Mr. Smith maintains that his “non-existent” coordination with the Biden administration is not suitable material to slide into the jury room, coming as it does from “anonymous sources in newspapers.” Mr. Smith may be referring to reports that the White House uses the press to communicate the president’s wishes to Attorney General Garland. Notably, the New York Times reported in April 2022 that “Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted” and that he had “frustrations” with Mr. Garland and “wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.” A few months later, Mr. Garland appointed Mr. Smith as special counsel.Mr. Smith vociferously objects to the characterization of his prosecution as political, arguing in his motion to Judge Chutkan that Mr. Trump’s trial “should be about the facts and the law, not politics,” as he asserts Mr. Trump is casting the case. It is, Mr. Smith writes, a selective “prosecution claim by another name.”The special counsel also wants Judge Chutkan to interdict any attempt on the part of Mr. Trump to “blame the events of January 6 on the Capitol Police, National Guard, and the District’s Mayor.” The 45th president has, on social media and in interviews, laid culpability for the chaos at the Capitol at the feet of those tasked with keeping it secure.Mr. Smith, though, wants to shield the jury from that position on the grounds that just as a “bank robber cannot defend himself by blaming the bank’s security guard for failing to stop him,” so too Mr. Trump “cannot argue that law enforcement should have prevented the violence he caused.” News reports, though, suggest that Mr. Trump was not blaming law enforcement, but political leadership. The special counsel also wants to bar Mr. Trump from claiming that “undercover actors” were at work at the Capitol.The government calls Mr. Trump’s interest in mounting arguments concerning alleged foreign interference in the 2020 election “an irrelevant and confusing sideshow” that runs the “acute risk of jury confusion.” The appeal of such a defense for Mr. Trump would be its utility in establishing that he was acting reasonably in contesting the result of the election — and carrying out his obligation to take care that the laws be faithfully executed.Mr. Trump, though, could also conceivably want to show that he was motivated by combating overseas interference in the 2020 election. Democrats devoted much of Mr. Trump’s first term in office to making the case that his 2016 campaign was marred by Russian collusion, an allegation that was found to be without merit by another special counsel, Robert Mueller. Mr. Trump is likely to object not only to the contents of Mr. Smith’s motion, but also that it was filed at all. The cause is being “held in abeyance” during appeal, meaning that its deadlines are lifted. The special counsel, though, appears to be ignoring that rule and to be committed to proceeding as if the case were chugging along, angling for a quick resumption of pre-trial paperwork when the stay is listed. Mr. Trump is likely to ask Judge Chutkan to put a stop to that.

Jack Smith, Comparing Trump to a ‘Bank Robber,’ Seeks To Bar Him From Criticizing Prosecution in Front of Jury, Cites Fear of ‘Nullification’

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