CNN senior legal analyst Elie Honig said Wednesday that the release of Special Counsel Jack Smith’s redacted brief detailing alleged election interference by Republican nominee Donald Trump was done in an “unusual” way.
Judge Tanya Chutkan released the 165-page brief including evidence collected into the investigation on whether Trump attempted to interfere in the 2020 election. Honig said it is uncommon as the defense usually submits their motion with the court before the prosecution in a criminal case, noting that the prosecution going first led to the release of the evidence to happen earlier than expected.
“There are a couple of unusual things about the way this happened,” Honig said. “So first of all, ordinarily when it comes time for motions, the defense goes first. The prosecution puts in its indictment, the defense says ‘here’s what we object to the indictment’ and then the prosecution responds. Here, Jack Smith said a few weeks ago ‘Judge Chutkan, we want to go first.’ And Judge Chutkan actually said ‘well that’s unusual’ but she let them go first. And the effect of that now is we essentially have Jack Smith’s case on paper, at least the parts that haven’t been redacted, 30-something days before the election, whereas we might not otherwise have had it.”
Honig explained how the indictment intends to prove that Trump’s actions on January 6, 2021, were not official presidential acts. The Supreme Court ruled in July that former presidents are immune from prosecution for official acts taken while they are in office, causing Smith to file a trimmed down superseding indictment in late August.
“What Jack Smith is doing here is he’s essentially laying out his trial case, but on paper rather than in a courtroom,” Honig said. “The reason why he is doing this all stems back to the U.S. Supreme Court’s immunity ruling which came down on July 1 of this year. What Jack Smith is now arguing to the district judge, the trial judge, Judge Chutkan, is all the things that we alleged against Donald Trump that are in the new indictment, the slimmer indictment that was returned a couple weeks ago. All of these were personal or political acts and not official acts.”
The legal analyst said the brief has a “bullet-point list” of conversations Trump had with former Vice President Mike Pence, in which he told the former vice president to not treat the 2020 presidential election as a loss but as an intermission.
Trump’s attorneys have argued that Smith should not be allowed to file the motion in the “court of public opinion” before the election.
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