Jack Smith’s New Donald Trump Filing Could ‘Backfire’: Legal Analyst

Legal analyst and attorney Jonathan Turley wrote in a Saturday opinion column that Department of Justice (DOJ) special counsel Jack Smith’s latest filing against former President Donald Trump could “backfire” on prosecutors.
On Wednesday, U.S. District Judge Tanya Chutkan, who is presiding over Trump’s federal election interference case, partly unsealed Smith’s 165-page filing aimed at convincing Chutkan that the former president’s alleged offenses in the wake of the 2020 election are private, rather than official acts of office, and can therefore remain in his indictment.
Trump, the Republican presidential nominee, faces four felony counts in Smith’s case against him in Washington, D.C., after he allegedly tried to overturn President Joe Biden’s 2020 election victory in the aftermath of his loss, which culminated in the U.S. Capitol riot on January 6, 2021. Trump has pleaded not guilty to all charges and claims the case is politically motivated.
The former president has also raged about the timing of Smith’s latest briefing, accusing the DOJ of looking to help Vice President Kamala Harris’ election bid in November by releasing the evidence now.
In an opinion piece published by The Hill on Saturday, Turley, who has been supportive of Trump throughout his legal battles, wrote that Smith’s briefing was an attempt to make “his closing election argument to voters because he knows that the 2024 election will be the largest jury verdict in history.”
“If voters reelect Trump, then neither Chutkan nor Smith will likely see a jury in the case,” Turley added. “This is why they must convict Trump now in the public eye or else admit to an effective acquittal by plebiscite.”
Turley continued, however, that Smith’s “timing could well backfire.”
“The weaponization of the legal system is central to this election, including the role of the Justice Department in pushing the debunked Russia-collusion allegations from the 2016 race,” the attorney wrote in his op-ed. “For many, the contents of Smith’s filing is not nearly as important as the time stamp over the case caption. Titled a ‘Motion for Immunity Determination,’ it seems more like a ‘Motion for an Election Determination.'”
Newsweek reached out to Smith’s office on Sunday via email for comment on the pushback prosecutors have received over the timing of the briefing.
The evidence laid out in Smith’s new briefing is largely based on grand jury testimony from unnamed White House aides and others close to Trump during the aftermath of the 2020 election, during which prosecutors allege Trump and his allies pushed baseless claims of widespread voter fraud.
In one example, prosecutors state that a Trump campaign staffer pressed a Trump operative in Detroit to start a riot among the former president’s supporters while the state was tallying its votes on November 4, 2020. In a text to the operative, the campaign staffer allegedly wrote. “Make them riot. Do it!!!!”
Prosecutors also focused on Trump’s actions in connection to the riot. According to the briefing, on the day of the insurrection, a White House aide had approached the former president to inform him that the Secret Service and Capitol police had to relocate then-Vice President Mike Pence to a secure location due to the threats being made by rioters. Trump reportedly responded to the aide in the exchange, “So what?”
Newsweek also reached out to Trump’s campaign via email Sunday for comment.
Legal experts have told Newsweek that Smith’s evidence against Trump is “pretty damning.” Former federal prosecutor Neama Rahmani said last week that the evidence included in the briefing “may turn off some moderate, undecided voters” come November.
“The motion is also important because it helps prove Trump’s knowledge that he lost the election and his intent to overturn the results nonetheless,” Rahmani said. “By detailing Trump’s communications with his inner circle, including his Attorney General and others who told him there was no fraud, Smith can get inside Trump’s head and prove the intent necessary for a criminal conviction.”
Los Angeles-based attorney John Perlstein echoed to Newsweek that Smith’s new evidence helps to establish Trump’s intentions after the 2020 election.
“He [Trump] said that he wouldn’t accept the results if he were to lose and would do everything possible to get the election overturned,” Perlstein said. “There is damning evidence against him, but whether it circumvents the immunity grant given by the Supreme Court is a whole other issue.”
Turley noted in his op-ed on Saturday that while “Smith’s raw political calculation should be troubling for anyone who values the rule of law. None of this excuses anything in these allegations against Trump.”
Trump’s federal election trial will not begin until after November’s election as pre-trial proceedings continue. On Thursday, Chutkan gave Trump until November 7 to file his response to Smith’s new filing.
The reason that Smith filed his 165-page brief in the first place goes back to a U.S. Supreme Court decision on July 1 that former presidents have immunity for official acts conducted while in office but not for unofficial acts. The case was brought to the high court in a push from Trump to have the case thrown out. Smith, meanwhile, updated Trump’s original indictment, and a grand jury reindicted the former president last month.
The superseding indictment removes some specific allegations against Trump, but the former president is still charged with the same four counts from the original indictment filed in August 2023: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction and attempting to obstruct an official proceeding; and conspiracy against rights.