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Tag: Tanya Chutkan

  • Jack Smith’s October Surprise

    Jack Smith’s October Surprise

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    Photo-Illustration: Intelligencer; Photos: Getty Images/Department of Justice

    Jack Smith has failed in his quest to try Donald Trump before the 2024 election. So instead, the special counsel has bent ordinary procedure to get in one last shot, just weeks before voters go to the polls.

    Smith has now dropped a 165-page doorstop of a filing in federal court, on the issue of Trump’s immunity from prosecution. Judge Tanya Chutkan — who suddenly claims not to care about the impending election despite her earlier efforts to expedite the case to get it in before the very same election, which got her reversed and chastised by the Supreme Court — duly complied with Smith’s wishes, redacted out a few obvious names (who ever might “Arizona Governor [Redacted P-16]” be?), and made the rest public.

    There are two headlines here. The immediate takeaway lies in the revelations contained in Smith’s oversize brief. (He asked the judge for, and received, permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details on Trump’s effort to pressure Vice-President Mike Pence to throw the election his way, Trump’s phone use and use of Twitter as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story’s structure is the same as we’ve long known, but the new details lend depth and dimension.

    The larger, if less obvious, headline is that 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.)

    Let’s go through the problems with what Smith has done here.

    First, this is backward. 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.

    Which brings us to the second point: Smith’s proactive filing is prejudicial to Trump, legally and politically. It’s ironic. Smith has complained throughout the case that Trump’s words might taint the jury pool. Accordingly, the special counsel requested a gag order that was so preposterously broad that even Judge Chutkan slimmed it down considerably (and the Court of Appeals narrowed it further after that).

    Yet 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.

    And that brings us to our final point: 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.

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    Elie Honig

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  • Fani Willis scandal has “blood in the water,” legal analyst warns

    Fani Willis scandal has “blood in the water,” legal analyst warns

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    Legal analyst and former U.S. Attorney Harry Litman warned that there is “blood in the water” in the developing Fani Willis-Nathan Wade investigation, despite his belief that their relationship presents “no conflict” to Willis’ case against Donald Trump.

    While he is still the leading candidate for the 2024 GOP presidential nomination, Trump is also facing four criminal indictments at the state and federal levels, adding up to 91 criminal charges that are the first ever leveled against a former president. Among those indictments is one from Fulton County, Georgia, where an investigation led by District Attorney Willis has charged Trump and others with racketeering over allegations that they attempted to interfere with the results of the 2020 presidential election in the state. Trump himself has pleaded not guilty to the charges.

    One of Trump’s co-defendants, Michael Roman, filed a motion last month alleging that Willis was having a “personal relationship” with Wade “during the pendency” of the investigation into Trump. Roman’s motion alleges that Willis personally profited from the case against him, claiming Wade was paid in excess of $650,000 and that he used the earnings to pay for them to take vacations together.

    In a filing from Friday, Willis acknowledged the past relationship with Wade, but denied that it presented any conflict of interest on her part, writing that “any personal relationship among members of the prosecution team does not amount to a disqualifying conflict of interest or otherwise harm a criminal defendant.”

    Fulton County District Attorney Fani Willis is seen delivering a criminal indictment against Donald Trump. Legal analyst Harry Litman on Friday warned that there could be “blood in the water” with regard to Willis’s relationship…


    Joe Raedle/Getty Images

    “Defendants have done nothing to establish an actual conflict of interest, nor have they shown that, in the handling of the case, District Attorney Willis or Special Prosecutor Wade have acted out of any personal or financial motivation,” the filing reads, later adding that, “District Attorney Willis has no financial conflict of interest that constitutes a legal basis for disqualification.”

    During a Friday appearance on MSNBC‘s All In with Chris Hayes, Litman, who previously served as a U.S. attorney for the Western District of Pennsylvania and deputy assistant attorney general at the Department of Justice (DOJ) during the Clinton administration, discussed recent developments in Trump’s various criminal trials.

    During the discussion, Litman touched on the situation with Willis, stating that while he believes her relationship with Wade did not present any conflict, there is still now “blood in the water” surrounding the case.

    “It’s 100 percent true under Georgia law, she needed to do it. The law of these kinds of scandals is to get it all out early,” he explained. “The thing is, by now, there’s sort of blood in the water. You have one of these phoney baloney special investigative commissions in Georgia, none other than [House Judiciary Chair] Jim Jordan subpoenaed her today. [Judge Scott] McAfee’s going to have a hearing on the 15th and oddly, even before this, he styled it an ‘evidentiary hearing.’ So what sort of evidence is it going to take? It could be a bit of a circus.”

    Newsweek reached out to Willis’s office via email for comment on Saturday.