Jack Smith's "October Surprise" was so overtly political and unethical that it was too much even for a senior legal analyst from a liberal network, CNN. The disgust by Elie Honig towards the antics of Jack Smith boiled over on Thursday in New York Magazine in an article whose title reflected Honig's opinion, "Jack Smith’s October Cheap Shot."
...Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects. At this point, there’s simply no defending Smith’s conduct on any sort of principled or institutional basis. “But we need to know this stuff before we vote!” is a nice bumper sticker, but it’s neither a response to nor an excuse for Smith’s unprincipled, norm-breaking practice. (It also overlooks the fact that the Justice Department bears responsibility for taking over two and a half years to indict in the first place.)
...The way motions work — under the federal rules, and consistent with common sense — is that the prosecutor files an indictment; the defense makes motions (to dismiss charges, to suppress evidence, or what have you); and then the prosecution responds to those motions. Makes sense, right? It’s worked for hundreds of years in our courts.
Not here. Not when there’s an election right around the corner and dwindling opportunity to make a dent. So Smith turned the well-established, thoroughly uncontroversial rules of criminal procedure on their head and asked Judge Chutkan for permission to file first — even with no actual defense motion pending. Trump’s team objected, and the judge acknowledged that Smith’s request to file first was “procedurally irregular” — moments before she ruled in Smith’s favor, as she’s done at virtually every consequential turn.
Honig goes on to denounce Smith's grotesque misuse of grand jury testimony, which is supposed to remain secret prior to a trial, in his very public legal filing.
...Smith now uses grand-jury testimony (which ordinarily remains secret at this stage) and drafts up a tidy 165-page document that contains all manner of damaging statements about a criminal defendant, made outside of a trial setting and without being subjected to the rules of evidence or cross-examination, and files it publicly, generating national headlines. You know who’ll see those allegations? The voters, sure — and also members of the jury pool.
Finally, Honig slams Smith for violating the DOJ policy of not taking any action before an upcoming election that may affect its outcome.
...Smith’s conduct here violates core DOJ principle and policy. The Justice Manual — DOJ’s internal bible, essentially — contains a section titled “Actions That May Have an Impact on the Election.” Now: Does Smith’s filing qualify? May it have an impact on the election? Of course. So what does the rule tell us? “Federal prosecutors … may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”
Remember, Smith begged the judge to flip the rules on their head so he could file this document first, and quickly — “any action,” by any reasonable definition — with the election right around the corner. Anyone who objected to James Comey’s outrageous announcements about the Hillary Clinton email investigation on the eve of the 2016 election should feel the same about Smith’s conduct now. What’s the distinction? Both violated ordinary procedure to take public steps, shortly before an election, that plainly would have an impact on that election.
I’m going to hand this one over to one of DOJ’s most esteemed alums, who explained it this way to the Justice Department’s internal watchdog: “To me if it [an election] were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now, you don’t do it.”
Those words were spoken by Sally Yates — former deputy attorney general, venerated career prosecutor, no fan of Trump (who unceremoniously fired her in 2017), and liberal folk hero. As usual, Yates is spot on. And her explanation conveys this indelible truth: If prosecutors bend their principles depending on the identity of their prey, then they’ve got no principles at all.
Hopefully the people working at CNN will take note of what their own senior legal analyst wrote on the subject of Jack Smith's (lack of) ethics and keep it in mind when commenting on his October Surprise.
