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There are <a href="https://www.washingtonpost.com/opinions/2023/07/20/trump-jan-6-indictment-legal-theories/" target=_blank>real legal problems</a> with special counsel Jack Smith’s election-interference case against <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a>. The former president’s effort to overturn the 2020 election was despicable, but <a href="https://www.washingtonpost.com/opinions/2023/08/12/weakness-trump-fake-electors-indictment/" target=_blank>political lying isn’t generally a crime</a>. Smith’s case thus must rely on some of the vaguest laws in the federal penal code, applying them in untested ways.

But let’s say you disagree: You think Trump’s post-election behavior was clearly criminal, and President Biden’s Justice Department had no choice as a matter of law but to indict him for it. Two recent developments in the case should nonetheless undermine the fiction that Smith is an apolitical prosecutor who acts independently of the electoral interests of the administration he works for.

Smith <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.57.0_8.pdf" target=_blank>sought a pretrial gag order</a> against Trump that would have limited so much of the candidate’s political speech that it had to be successively narrowed by two courts. Now, in a <a href="https://www.supremecourt.gov/DocketPDF/23/23-624/292946/20231211115417267_No.%2023-624%20U.S.%20v.%20Donald%20J.%20Trump%20Petition.pdf" target=_blank>filing at the Supreme Court</a>, Smith has all but announced that his prosecutorial timeline is controlled by the 2024 general election in which Trump is likely to be a candidate.

Start with the gag order litigation. In September, Smith <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.57.0_8.pdf" target=_blank>asked for startling restrictions</a> on Trump’s right to object to his own prosecution. He demanded that Trump be barred from “disparaging and inflammatory” statements about Smith or the judicial system. Most astonishing, <a href="https://www.washingtonpost.com/opinions/2023/09/19/donald-trump-gag-order/" target=_blank>the special counsel suggested</a> that Trump should be barred from blaming Biden for the prosecution — essentially muzzling a major line of criticism against the administration that Trump wants to unseat.

District Judge Tanya S. Chutkan, appointed by President Barack Obama, clearly leans toward the prosecution in this case. But <a href="https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2023cr0257-105" target=_blank>the gag order she issued</a> in October was significantly narrower than the one Smith sought. Chutkan did not limit Trump’s ability to criticize the judge (that is, herself). And while she barred Trump from targeting Smith personally, she said explicitly that Trump <i>could</i> attack “the current administration or the Department of Justice” and assert “that his prosecution is politically motivated.”

Last Friday, a three-judge appellate panel composed entirely of Obama and Biden appointees narrowed Chutkan’s gag order. Parts of her order — which itself banned a fraction of the speech Smith wanted to ban — still violated Trump’s First Amendment rights, the <a href="https://storage.courtlistener.com/recap/gov.uscourts.cadc.40232/gov.uscourts.cadc.40232.1208578024.0.pdf" target=_blank>Democratic-appointed judges unanimously said</a>:

“Under the court’s Order, his opponents could without restriction wield the indictment and evidence in the case to demonstrate his unfitness for office. Yet the Order would allow Mr. Trump to respond only by ‘asserting that [he] is innocent of the charges,’ and then changing the subject to his rival’s ‘campaign platform or policies.’ Permitting Mr. Trump to answer such political attacks with only an anodyne ‘I beg to differ’ would unfairly skew the political debate.”

While leaving in place prohibitions on trying to influence witnesses, among other restrictions, the appellate court restored Trump’s ability to attack Smith. It explained, in a rebuke of the special counsel, that “criminal defendants facing potential curtailments of liberty have especially strong interests in commenting, within reasonable bounds, on prosecutors’ use of their power.”

You might think that a prosecutor trying to impose a gag order against a <a href="https://www.washingtonpost.com/politics/interactive/presidential-candidates-2024/" target="_blank" class="contextual_link">presidential candidate</a> would tread carefully, mindful of constitutional limitations, to avoid the appearance of Justice Department interference in an election. Not Smith. The special counsel, we can see, takes a more cramped view of the First Amendment than even Democratic-appointed judges who are hardly sympathetic to Trump. What will happen if Trump is convicted and Smith’s underlying criminal-law theories are tested on appeal before conservative as well as liberal judges? The convictions might well be vulnerable to constitutional challenge.

But Smith is probably less concerned now with whether a Trump conviction will survive appeal than with whether Trump can be convicted ahead of the November 2024 election. That brings us to Smith’s unusual motion, filed Monday, to <a href="https://www.washingtonpost.com/politics/2023/12/11/supreme-court-trump-prosecution-immunity/2ee5ec4c-984d-11ee-82d9-be1b5ea041ab_story.html" target=_blank>bypass the normal appellate process</a> and fast-track the Trump trial based on what can be described only as a political timetable.

Trump claims that he has immunity from this prosecution because he was performing official presidential duties when he tried to overturn the 2020 election and because the Senate acquitted him in its 2021 impeachment trial. These claims are very likely wrong, but they raise novel legal issues. <a href="https://www.washingtonpost.com/opinions/2023/10/06/trump-trial-delay-immunity/" target=_blank>The problem for Smith</a> is that Trump’s criminal trial can’t proceed until they are litigated further.

Chutkan <a href="https://www.washingtonpost.com/dc-md-va/2023/12/01/trump-immunity-rejected-jan6-judge/" target=_blank>denied Trump’s immunity claims</a> this month, and Trump has appealed to the U.S. Court of Appeals for the D.C. Circuit. But in a surprise filing with the Supreme Court, Smith made what he acknowledged was “an extraordinary request.” He asked the justices to step in and resolve the immunity question right away.

The Supreme Court occasionally lets parties leapfrog appellate courts, but they need a compelling reason for the urgency. As the Washington Examiner’s <a href="https://x.com/ByronYork/status/1734305076582244850?s=20" target=_blank>Byron York pointed out</a>, Smith never offers such a reason in the filing. Here’s the closest the prosecutor comes:

“Vindicating that public interest in this case requires immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable. If appellate review of the decision below were to proceed through the ordinary process in the court of appeals, the pace of review may not result in a final decision for many months; even if the decision arrives sooner, the timing of such a decision might prevent this Court from hearing and deciding the case this Term.”

This argument is circular: The case must be accelerated, because if it’s not accelerated, it will be delayed. But trials are delayed all the time, sometimes for years. Smith doesn’t say what he means: If the justices don’t take the case now, the chances of completing a trial <i>before the 2024 election </i>will go down. If Trump is not tried and convicted by the election, the chances of a Biden victory will take a hit.

Trump, of course, wants to delay the trial out of self-preservation. If he wins the election, his Justice Department could halt his federal prosecutions. But if Smith’s decisions were independent of the political calendar, that would be of no concern to him. His job is supposedly to work for the Justice Department — not to try to influence which party controls the Justice Department at a given time.

There might be an argument that it’s legitimate for Smith to take the election date into account, but it’s telling that his Supreme Court filing doesn’t make it. That’s because it would amount to a confession of what even Smith’s defenders must be able to see: The special counsel is an aggressive political actor seeking a political outcome as much as a legal one. The fiction that he is anything else is outliving its usefulness.

Stanford University, BA

Jason Willick is a Washington Post columnist focusing on law, politics and foreign policy.

Jason Willick

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