'Reckless' Jack Smith's J6 Paper Trial of Donald Trump

Knowing his gutted Jan 6 indictment against the former president will never get to trial, Smith, with help by Judge Tanya Chutkan, is preparing his opening arguments in a massive one-sided DOJ brief.

No one would dare to describe CNN legal analyst Elie Honig as a Donald Trump supporter. To the contrary, the former federal prosecutor frequently sides with the Department of Justice in its nonstop pursuit of Trump and those around him.

So Honig’s article in New York magazine probably rattled his one-time colleagues at the DOJ. Calling Special Counsel Jack Smith’s revised J6 case a “reckless gamble,” Honig blasted Smith for ignoring the Supreme Court’s immunity guidance in Trump v US and pursuing a criminal case that has no chance of surviving future tests by higher courts. “As his 2020 election-subversion case gets back on track after the Supreme Court’s landscape-shifting immunity ruling, Smith has taken a defiant tack that likely will hurt his own cause and perhaps eventually end it altogether,” Honig wrote on September 13. Honig correctly criticized Smith for preserving in his updated indictment what the court considered “presumptively immune” conversations between Trump and Michael Pence related to the certification proceedings on January 6.

Honig also took a delicious shot at Smith’s losing track record: “Despite the rush to crown him as some infallible giant-slayer immediately upon his appointment as special counsel in November 2022, the reality is Smith’s career is stained with high-profile failures born of prosecutorial overreach. He supervised, at various points, spectacularly failed prosecutions of Virginia governor Bob McDonnell, former North Carolina senator and presidential and vice-presidential candidate John Edwards, and New Jersey senator Bob Menendez.” (Honig did not add Smith’s three losses at the Supreme Court this year: immunity, Fischer v US which impacts two of the four counts in Smith’s J6 indictment, and the court’s denial of Smith’s request to bypass the D.C. appellate court on the immunity matter.)

The special counsel’s “to hell with it all” and “defiant” approach will ultimately doom another Smith-led case, Honig predicted.

Wow.

A Paper Tiger Leads a Paper Trial

And Smith is proving Honig right. Not only did Smith bring a watered-down superseding indictment against Trump with a little more than 60 days to go before Election Day, but Smith now is attempting to conduct a paper trial of sorts to coincide with early voting in many states.

In a motion filed Saturday, Smith asked Judge Tanya Chutkan to allow the government to exceed the number of pages typically allowed in court motions—45 pages for opening motions and responses and 25 pages for replies—in what the special counsel calls an “opening brief” in the J6 case.

Smith informed Chutkan the brief could come in at a whopping 180 pages, hardly a minor exception to court rules. It is due on Thursday.

Trump’s attorneys vehemently oppose the DOJ’s proposed brief, which Chutkan herself admitted is “irregular” and outside the “ordinary course” of court proceedings. But in her shared zeal to advance Smith’s case against Trump, the Obama appointee with a long record of making anti-Trump statements consented to Smith’s unusual request. (As I wrote here, Chutkan shows no sign of contrition or embarrassment over the Supreme Court’s harsh criticism over her handling of the unprecedented immunity matter.)

The brief allows Smith to claim the former president’s conduct cited in the superseding indictment represented personal or private acts, which are not covered by immunity per the SCOTUS opinion.

During a September 5 hearing, Thomas Windom, Smith’s lead prosecutor on the case, explained what the brief would disclose:

“That part of the brief would include things that are both in and outside the indictment. We anticipate that the brief would have a substantial number of exhibits. Those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, documentary exhibits, things of that nature, things that would allow the Court to consider both the circumstances and the content, form and context, all in the words of the Supreme Court, that the Court needs to have in order to make its [immunity] determinations.”

In other words, what Smith portrays as “a detailed, factbound, and thorough analysis” of existing immunity questions—one the Supreme Court ordered in its remand of Chutkan’s original order denying all forms of presidential immunity in the J6 indictment—will instead act as the DOJ’s opening arguments in the paper trial of Donald Trump.

But unlike a real trial where the defense is immediately allowed an opportunity to refute the government’s assertions, Trump’s team will need weeks to review the massive document and prepare a written response. Chutkan, per usual, set a tight turnaround to coincide with the waning days of the 2024 election. She ordered Trump to respond to the opening brief by October 17 and gave Smith until October 29 to reply to Trump’s opposition. (She also informed Trump that he has until the end of business Monday to respond to Smith’s request on the excessive brief.)

And in an effort to add suspense as to what the brief contains, if Chutkan permits Smith to file the supersized brief (which is expected), the special counsel wants to initially file it under seal with proposed redactions to protect “sensitive material.” Chutkan will have the last word on what evidence remains redacted in the public version.

Imagine the wild speculation about redacted passages in the brief. Or the flooding of news and social media platforms with juicy tidbits about unredacted witness testimony or FBI records related to the investigation. All in time to produce wall-to-wall headlines on Trump’s alleged efforts to overturn the 2020 election that coincide with unsubstantiated claims that Trump plans to do it again this year.

Court Jesters Clap Madly

Meanwhile, self-proclaimed legal “experts” are salivating at the prospect of a paper trial. “He plans to lay out the mountain of evidence against Trump,” NBC legal analyst and author of a new book on “disinformation” Barbara McQuade swooned on X. 

“Steel yourself,” McQuade’s colleague Lisa Rubin gloated in response to Smith’s motion.

There is one person, however, who will be very limited in how he can respond to the brief: Donald Trump. The GOP presidential candidate remains under a gag order imposed by Chutkan last year that prohibits him from making “public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.”

It is hard to think of anything more unfair not just to Trump but to the American people than a one-sided paper trial led by a known loser (Jack Smith) and presided over by an unrepentant judicial hack (Chutkan) during arguably the most consequential presidential election in history with one candidate unable to publicly respond.

Lady Justice weeps.