Special Counsel Jack Smith stands at a podium.

Special Counsel Jack Smith announces indictment of former President Donald Trump during a press conference on August 1, 2023 in Washington, D.C.

(Photo: Ricky Carioti/The Washington Post via Getty Images)

Jack Smith Seeks Ban on 'Political Attacks,' Disinformation at Trump Trial

"Defendants don't get to say whatever they want to in front of a jury," explained on legal expert. "Expect more motions like this from Smith."

Former U.S. President Donald Trump's federal election interference case may not ever go to trial, but that didn't stop Special Counsel Jack Smith from filing a formal request on Wednesday asking District Judge Tanya Chutkan to impose certain limitations if it does.

While the trial is scheduled for March, it could be delayed or blocked due to an ongoing legal battle over Trump's claim that he is immune from charges related to his involvement in efforts to overturn the 2020 election results, including the insurrection at the U.S. Capitol on January 6, 2021, because he was president at the time.

The U.S. Supreme Court on Friday rejected Smith's request that the justices skip over an appeals court and weigh in immediately. The appellate court is set to hear that case on January 9, after which it is expected to end up before the Supreme Court again. Smith's new motion could help establish some ground rules if the trial ever happens.

"Through public statements, filings, and argument in hearings before the court, the defense has attempted to inject into this case partisan political attacks and irrelevant and prejudicial issues that have no place in a jury trial," the motion begins. "Although the court can recognize these efforts for what they are and disregard them, the jury—if subjected to them—may not."

"The court should not permit the defendant to turn the courtroom into a forum in which he propagates irrelevant disinformation, and should reject his attempt to inject politics into this proceeding," the 20-page filing continues. "To ensure that the jury remains focused on its fact-finding duty and applies the law as instructed by the court, the defendant's improper evidence and argument should be excluded."

Despite Trump's several criminal cases and arguments that inciting an insurrection disqualifies him from holding office again, he is the leading GOP candidate for 2024. Democratic President Joe Biden, who beat him in 2020, is seeking reelection.

After Trump formally launched his current campaign last year, Biden-appointed U.S. Attorney General Merrick Garland announced Smith as special counsel to take over ongoing Department of Justice (DOJ) probes into the twice-impeached former president. Trump was indicted in a federal classified documents case overseen by Smith in June and in the election case in August.

Since then, Trump "has made a baseless claim of selective and vindictive prosecution... and repeatedly has levied the false accusation that the indictment—returned by a grand jury of citizens of this district on a finding of probable cause—was directed by the current president as a form of election interference," Smith wrote Wednesday. "In addition to being wrong, these allegations are irrelevant to the jury's determination of the defendant's guilt or innocence, would be prejudicial if presented to the jury, and must be excluded."

Trump has also "signaled his intention to blame the events of January 6 on the Capitol Police, National Guard, and the district's mayor," the special counsel added, noting that courts have "overwhelmingly rejected" attempts by other insurrection defendants to blame law enforcement.

"A bank robber cannot defend himself by blaming the bank's security guard for failing to stop him," Smith argued. "A fraud defendant cannot claim to the jury that his victims should have known better than to fall for his scheme. And the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended."

Responding to the motion in a series of posts on social media, Los Angeles Times senior legal affairs columnist Harry Litman posited that the filing "has to make Trump apoplectic."

Addressing the motion on his social media platform, Trump said:

Crooked Joe Biden's errand boy, Deranged Jack Smith, is obsessed with attacking your favorite President, me, and with interfering in the 2024 Presidential Election, which I am Dominating. Deranged Jack is so Viciously and Desperately Angry that the Supreme Court just unanimously rejected his flailing attempt to rush this Witch Hunt, that he is ignoring the Law and clear instructions from the D.C. Court that this "case" should be stayed, and there cannot be any more filings. Today’s pathetic motion is not just Illegal, it is also another Unconstitutional attempt to take away my First Amendment Rights, and to prevent me from saying the TRUTH—that all of these Hoaxes are nothing but a political persecution of me, the MAGA Movement, and the Republican Party by Crooked Joe and his Despicable Thugs. The Radical Left Communists, Marxists, and Fascists are petrified of me speaking the TRUTH because the American People don't want them destroying our Country. Make America Great Again!

Litman said that Trump and Smith "know that the filing will be devoured by press and public and put the DOJ's unanswered argument into public play... Trump won't answer on the merits—he's relying on the stay. But he could file a motion before Chutkan asking her to order DOJ not to keep filing."

"Yet that raises the question what exactly is wrong with it. She'll assure the parties that she's not looking at the papers, but there's not a prohibition on parties' filing motions early. So she could respond to the motion by saying DOJ can do what it wants; I just won't read," he explained. "It's actually a bit of a provocation on Smith's part."

The expert stressed that "on the merits, the motion is perfectly orthodox and proper: says don't let Trump try to sneak in evidence that it's a politically motivated prosecution by Biden no less, which would be 1. false; 2. irrelevant; and 3. unduly prejudicial in that it's not a basis for acquittal."

"And that has the collateral effect of emphasizing to the public that Trump's whole campaign is not just legally but logically, fairly, justly completely separate from his guilt for the serious charges growing out of his attempt to reverse the election," he added.

Former federal prosecutor David Aaron similarly toldThe Washington Post that "it's is not unusual at all for a prosecutor to try to protect their case by trimming off these potentially irrelevant, or confusing, or misleading areas in advance of trial."

"If Jack Smith prevails in these motions," he added, "it's just another step in a normal criminal proceeding."

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