OPINION:
Jack Smith, the special counsel prosecuting Donald Trump in the District, put his thumb on the electoral scales on Wednesday. U.S. District Judge Tanya Chutkan allowed the activist prosecutor to publish 165 pages of unverified testimony against the former president revolving largely around discussions with the vice president about the 2020 election.
The Supreme Court has already ruled that a president’s official actions are immune from being questioned in a courtroom setting and that Mr. Trump “is at least presumptively immune from prosecution” for anything he said to then-Vice President Mike Pence.
Rather than take the hint that the high court isn’t particularly fond of the Biden-Harris administration’s prosecution of a political opponent, Judge Chutkan decided to give Mr. Smith a free hand in second-guessing Mr. Trump’s actions as commander in chief.
Judge Chutkan’s initial plan to rush the case to trial before Nov. 5 was sabotaged by the justices’ intervention. A one-sided presentation of allegations against the Republican nominee about a month before Election Day turned out to be the next best option.
An appointee of President Barack Obama, Judge Chutkan had previously ruled witness identities and testimony were so sensitive that the former president had to be gagged, lest their names be leaked and the witnesses subjected to harassment.
“In order to safeguard the integrity of these proceedings, it is necessary to impose certain restrictions on public statements by interested parties,” she wrote one year ago. She dismissed the former president’s First Amendment rights by asserting that she had no other choice, citing an overriding concern for witness safety.
Judge Chutkan apparently no longer cares about safety; she freed Mr. Smith to finger everyone involved through their job titles and fake redactions. For instance, Mr. Smith refers to Mr. Trump’s attorney general as “P52,” obviously referring to William Barr.
The Sixth Amendment requires the evidence these witnesses gave to be subject to cross-examination, yet Judge Chutkan is letting Mr. Smith bypass this process and make a case to the public in legal briefs.
There’s no legal reason a proper proceeding couldn’t take place after the election. There’s also no reason not to file incendiary material under seal to avoid the appearance of influencing the coming election. If the Justice Department’s true goal was to give its media allies misleading headlines to print, that mission was a complete success.
Outlets such as Deadline went with “‘Make Them Riot’: Newly Unsealed Filing Gives New Details Of Federal Election Conspiracy Case Against Donald Trump” as if those words were the former president’s. It’s only in the story’s penultimate paragraph that the author acknowledges that someone else — a campaign staffer — made the comment.
Those words were also a reference to the Brooks Brothers riot of 2000, when then-Vice President Al Gore challenged the election results in Florida. It’s not the “most secure election ever” when Democrats lose.
The “riot” referred to the well-dressed GOP staffers who loudly complained about Democratic elections officials in Miami-Dade County tallying “hanging chads” behind closed doors, away from public scrutiny — echoing the lack of transparency that clouds some of 2020’s vote counts.
Mr. Smith’s eleventh-hour smear campaign is the desperate act of a prosecutor accustomed to having his overly creative legal interpretations overturned. His “classified documents” case against Mr. Trump bombed in a Florida courtroom, where his appointment as special counsel was deemed illegal.
In pressing forward, he reveals the partisanship behind this effort.
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