Smith speaks out: Four times Trump special counsel took his case public as deadline to prosecute draws near

Special counsel Jack Smith is prosecuting former President Donald Trump on various charges in two cases before federal courts, but several times, he has made his case to the public rather than just the court.

Smith is leading cases against Trump on the alleged mishandling of classified documents (in a Florida federal court) and on alleged attempts to overturn the 2020 election (in a Washington, D.C., federal court). As the two cases continue to press forward in tandem with the looming presidential election, here are four recent times Smith’s filings have been a message to the court and the public.

April 8, 2024: ‘Framers never endorsed criminal immunity’

Smith’s Monday filing to the Supreme Court, for the case in which Trump is claiming that he has presidential immunity against Smith’s 2020 election subversion case, invoked the framers of the Constitution to make his case for why he should be allowed to prosecute Trump.

“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts,” Smith told the Supreme Court in a lengthy filing.

He railed at Trump’s claims, which will have oral arguments before the court later this month, calling them a “radical suggestion.”

“That radical suggestion, which would free the President from virtually all criminal law — even crimes such as bribery, murder, treason, and sedition — is unfounded,” Smith wrote in the filing.

April 2, 2024: Rebukes judge’s questions based on ‘fundamentally flawed legal premise’

Trump has been criticized for taking shots at the district court judge in the 2020 election subversion case, but Smith’s filing in the classified documents case last week was a fiery rebuke to Judge Aileen Cannon’s directives for hypothetical jury instructions.

Cannon had given both sides two scenarios with which to craft their proposed jury instructions, but Smith’s filing argued the scenarios were “fundamentally flawed” and said a jury getting instructions based on the scenarios “would distort the trial.”

“Both scenarios rest on an unstated and fundamentally flawed legal premise — namely, that the Presidential Records Act and in particular its distinction between ‘personal’ and ‘Presidential’ records, determines whether a former President is ‘authorized,’ under the Espionage Act, to possess highly classified documents and store them in an unsecure facility,” the special counsel’s team wrote in the filing.

He also argued that they “must be provided with an opportunity to seek prompt appellate review,” indicating he intends to appeal Cannon’s order.

March 7, 2024: Argues Trump’s ‘frivolous claim’ of immunity is nothing more than a stall tactic

In a series of filings ahead of a hearing in the classified documents case, Smith addressed various claims made by Trump, including an argument that Smith didn’t have the legal authority or funding to prosecute the former president.

Besides addressing Trump’s accusations, Smith also tore into the former president’s attempts to claim presidential immunity, a “frivolous claim,” according to the special counsel.

“That frivolous claim is offered for one transparent purpose — to delay the trial — and it fails for two independent reasons,” prosecutors wrote in a 27-page filing.

“Trump’s immunity claim here is so wholly without merit that it is difficult to understand it except as part of a strategic effort for delay,” they wrote, adding that “a groundless appeal should not be permitted to have that effect” of delay.

Feb. 26, 2024: Trump and Biden classified document cases are not ‘remotely similar’

After special counsel Robert Hur declined to prosecute President Joe Biden on the alleged mishandling of classified documents, citing Biden’s purportedly poor memory in the lengthy report, Trump’s lawyers attempted to make connections between Biden’s classified documents case and Trump’s case.


Smith’s team, in a filing, rejected these claims, arguing that the two are not even “remotely similar.”

“Most notably, Trump, unlike Biden, is alleged to have engaged in extensive and repeated efforts to obstruct justice and thwart the return of documents bearing classification markings,” Smith wrote. “And the evidence concerning the two men’s intent — whether they knowingly possessed and willfully retained such documents — is also starkly different.”

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