In a striking echo of history, the words of federal prosecutors from 184 years ago, describing a situation as the most stupendous and atrocious fraud, seem to reverberate in the recent defense filing by Special Counsel Jack Smith in his prosecution of former President Donald Trump.
The original quote was part of a Justice Department filing just days before the 1840 presidential election, where Democratic President Martin Van Buren was battling for reelection against Whig William Henry Harrison. The Justice Department, in a move many consider the first October Surprise, accused Whig Party officials of paying Pennsylvanians to travel to New York to vote for Whig candidates.
The term October Surprise has since come to denote a last-minute pre-election scandal or significant event designed to influence voters. To prevent allegations of political manipulation, the Justice Department has traditionally adhered to a policy of refraining from making potentially impactful filings within 60 or 90 days of an election. As reported by The Hill, the Justice Department manual explicitly states, Federal prosecutors may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.
However, Special Counsel Jack Smith has consistently dismissed such considerations. Smith has been relentless in his insistence on a pre-election trial, even going so far as to demand that Trump be denied standard appellate options to expedite the trial. Smith's rationale for a pre-election trial, suggesting that voters should witness the trial and its outcomes, directly challenges the Justice Department's rule against such pre-election actions.
Following the Supreme Court's ruling that parts of his indictment against Trump were presumptively unconstitutional, Smith made it clear he was ready to prosecute Trump up until the day of his inauguration. Unyielding in his pursuit, Smith refused to drop the primary allegations against Trump, even when they were linked to official decisions or actions that the court had deemed protected in Trump v. United States. Instead, he removed some prior evidence related to Trumps presidency, including testimonies from White House staff, but kept the same underlying allegations, repeatedly referring to Trump as acting as a private citizen.
Smith's refusal to drop the obstruction of official proceedings charge, despite a recent Supreme Court decision (Fischer v. United States) rendering that charge presumptively invalid, further underscores his determination. Critics argue that Smith is not making his case to Judge Tanya Chutkan, but to Americas voters. Chutkan, who has consistently ruled in Smith's favor to expedite the case, allowed his accelerated rocket docket despite stating that she would not consider the election schedule as a factor in the pace of filings or the trial itself.
Critics have accused Judge Chutkan of being overly motivated in the case, with some suggesting she should have recused herself due to her comments during a sentencing hearing for a Jan. 6 rioter in 2022. Chutkan stated that the rioters were there in fealty, in loyalty, to one man not to the Constitution, adding, [i]ts a blind loyalty to one person who, by the way, remains free to this day. That one person was later brought to her courtroom for trial by Smith.
In a recent move, Chutkan and Smith used the Supreme Court decision to file a preemptive defense, a 165-page document filled with damaging accounts and testimonials against Trump, just weeks before the election. Despite acknowledging that Smiths request was procedurally irregular, Chutkan allowed it. This premature exercise, which would typically occur months later, after defense filings, could have been scheduled just a few weeks from now, or kept under seal to avoid the appearance of political maneuvering. However, the political impact seems to be the point, with Chutkan once again choosing the most politically impactful option at Smith's urging.
This irregularity led even typically anti-Trump legal analysts, such as CNNs senior legal analyst Elie Honig, to condemn Smiths filing as an unprincipled, norm-breaking practice. Honig added, Smith has essentially abandoned any pretense; hell bend any rule, switch up on any practice so long as he gets to chip away at Trumps electoral prospects.
Others, predictably, praised the filing as not only well-directed but also well-timed. Smith was making his closing election argument to voters, aware that the 2024 election will be the largest jury verdict in history. If voters reelect Trump, it is unlikely that either Chutkan or Smith will see a jury in the case. This is why they must convict Trump now in the public eye, or else admit to an effective acquittal by plebiscite.
Their timing could potentially backfire. The weaponization of the legal system is a central issue in this election, including the role of the Justice Department in promoting the debunked Russia-collusion allegations from the 2016 race. For many, the contents of Smiths filing are less important than the time stamp over the case caption. Titled a Motion for Immunity Determination, it seems more like a Motion for an Election Determination.
Smiths blatant political calculation should be concerning for anyone who values the rule of law. While none of this excuses any of the allegations against Trump, the most unsettling aspect of Smiths October Surprise is that it was not at all surprising.
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