Jack Smith strikes again!

December 28, 2023

Wednesday brought more developments in the effort to hold Trump accountable for his crimes. The primary takeaway is that special counsel Jack Smith is doing his utmost to ensure a fair trial that protects the interests of defendant Trump and the American people. We are fortunate that Jack Smith was appointed special counsel at this critical juncture in American history.

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Special counsel Jack Smith files pre-trial evidentiary motion in D.C. election interference case.

The D.C. election interference case is currently stayed as the D.C. Circuit Court of Appeals considers Trump's presidential immunity defense (set for hearing on January 9, 2024). Although the case is stayed, special counsel Jack Smith has told Judge Chutkan that the government intends to honor all of its pre-trial obligations on the dates set before the case was stayed by appeal.

On Wednesday, Jack Smith filed a “motion in limine”—which is a pretrial motion that asks that court to resolve evidentiary disputes expected to arise at trial. The motion is here: Government's Motion in Limine | United States v. Trump (“In limine” is a Latin phrase meaning “at the threshold.”) Jack Smith explained his rationale for filing the motion in limine during the pending stay for appeal as follows:

Nonetheless, to provide the Court and defendant notice and to promote the prompt resumption of the pretrial schedule if and when the mandate returns, the Government will continue to meet its own deadlines as previously determined by the Court.

Smith’s early filing of the motion in limine is a good sign. As we have seen in the NY civil fraud trial before Judge Engoron, Trump has attempted to create chaos during that trial by introducing irrelevant evidence, engaging in argumentative and harassing behavior toward the judge and witnesses, and advancing improper and cumulative arguments both inside and outside the courtroom.

If Smith’s motion in limine is granted, Judge Chutkan will issue an order prohibiting Trump from engaging in many of the disruptive arguments and tactics that have challenged Judge Engoron’s effort to maintain order and decorum in the NY civil trial.

Trump will seek to undermine the legitimacy of the criminal prosecution against him by turning it into a circus. That is precisely what Jack Smith seeks to prevent. Smith begins his motion by explaining why the government is entitled to prohibit the introduction of certain evidence:

Even if evidence is relevant, the Court may exclude it if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Significantly here—where the defendant repeatedly has levied baseless political claims—evidence or argument that serves only to support a jury nullification argument has no relevance to guilt or innocence and must be excluded.

Note Smith’s statement that Trump's intent in introducing irrelevant evidence is to encourage jury nullification—a situation where the jury decides to ignore the law and the facts to issue a verdict that achieves a political outcome. As Smith further explains, jury nullification is an assault on the justice system itself:

The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure.

Smith has thus identified the overarching challenge of trying Trump: Securing a jury that will apply the law to the facts to issue a just verdict. Trump, of course, wants to circumvent justice by convincing the jury to ignore the law—“jury nullification.”

To prevent that outcome, Jack Smith has asked Judge Chutkan to exclude the following evidence and prohibit the following arguments:

• Arguing that the government has engaged in selective prosecution;

• Arguing that the criminal investigation into Trump was politically motivated;

• Arguing legal issues to the jury (presidential immunity, First Amendment rights)

• Arguing that the prosecution constitutes “election interference;”

• Blaming the Capitol Police, Congress, or the Mayor of Washington, D.C. for failing to prevent the assault on the Capitol on January 6;

• Blaming undercover officers at Capitol on January 6 for inciting violence;

• Blaming “foreign actors” for inciting violence on January 6;

• Introducing evidence of post-crime changes to election law; and

• Eliciting third-party testimony about Trump's state of mind.

The motion in limine also suggested that special counsel Jack Smith anticipates calling current or former members of Congress to testify against Trump. One passage of the brief says the following:

The Government anticipates calling witnesses with knowledge of information protected by certain privileges, including . . . the Speech or Debate privilege. . . . The defendant should be precluded from questioning witnesses about otherwise protected information on cross-examination unless he receives pre-clearance from the Court.

By filing his motion early, Jack Smith has preemptively and publicly called out Trump's tactics. Trump's attorneys are not required to file an opposition because of the stay pending appeal.

Trump, of course, will respond on social media—which will undoubtedly increase the likelihood that Jack Smith’s motion will be granted. Orders granting (or denying) motions in limine are not appealable—which is bad news for Trump.

Meanwhile, Jack Smith’s opposition brief in the D.C. Circuit Court of appeals is due this Friday, December 29, 2023.

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Lawsuits to disqualify Trump under Section 3 of the 14th Amendment.

Developments in the Colorado action.

          The Republican Party of Colorado has filed a petition for review in the US Supreme Court of Colorado’s ruling that Trump must be excluded from that state’s presidential primary ballot. The Colorado GOP was an intervenor in the Colorado Supreme Court proceeding and so has standing to seek review in the US Supreme Court. Trump is expected to file a petition for review shortly (per CNN).

The filing of the petition for review by the Colorado GOP will extend the stay of Colorado’s decision until the US Supreme Court rules on the petition for review. See Anderson v. Griswold at 9.

The Colorado GOP’s Petition for Writ of Certiorari poses three questions for review by the US Supreme Court:

1. Whether the President falls within the list of officials subject to the disqualification provision of Section Three of the Fourteenth Amendment?

2. Whether Section Three of the Fourteenth Amendment is self-executing to the extent of allowing states to remove candidates from the ballot in the absence of any Congressional action authorizing such process?

3. Whether the denial to a political party of its ability to choose the candidate of its choice in a presidential primary and general election violates that party’s First Amendment Right of Association?

The argument that the president is not “an officer” under Section 3 of the 14th Amendment is a weak argument that should lose, as is the argument that enforcing Section 3 violates the First Amendment.

It is possible that the US Supreme Court will seize on the argument that Congress must pass “enabling legislation” to give effect to Section 3 and—having failed to do so—states may not claim that power for themselves.

The Colorado Supreme Court considered and rejected that argument, but scholars (and some judges) have accepted the “enabling legislation” argument as grounds for denying a disqualification claim under Section 3 of the 14th Amendment. See op-ed in NYTimes by Josh Blackman and S. B. Tillman, Opinion | Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene.  

But there are strong arguments that enabling legislation is not required—including the disqualification of officers in the Confederate Army in the absence of enabling legislation. See After the Cawthorn Ruling, Can Trump Be Saved From Section 3 of the 14th Amendment? | Lawfare.

While the correct interpretation and application of Section 3 to the facts of Trump's involvement in the January 6 insurrection should result in his disqualification, the Supreme Court’s reactionary majority will be looking for a way to avoid disqualification. The absence of “enabling legislation” may be an argument that sounds like a legitimate basis for overturning the Colorado Supreme Court’s decision—even though it is not.

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Developments in Michigan.

The Michigan Supreme Court rejected a claim that Trump must be disqualified from the Michigan presidential primary ballot. The rejection was based on procedural grounds not present in the Colorado case. Moreover, it is possible that the same claim can be asserted as to Trump's appearance in the Michigan general election for president. See CNN, Michigan Supreme Court rejects ‘insurrectionist ban’ case and keeps Trump on 2024 primary ballot.

Per CNN,

Unlike in Colorado, the Michigan courts rejected the case wholly on procedural grounds. They never reached the questions of whether January 6 was an insurrection and whether Trump engaged in it.

In short, do not over-interpret the ruling in Michigan today. It simply increases the likelihood the Supreme Court will grant a petition to review the applicability of Section 3 to Trump's presidential aspirations in 2024.

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Lauren Boebert switches congressional districts to avoid likely loss.

The odious Rep. Lauren Boebert saw the handwriting on the wall: She was going to lose her re-election bid in Colorado’s 3rd congressional district, so she has announced that she will seek election in Colorado’s 4th congressional district—a “safer” Republican district. The problem for Boebert is that she will be viewed as an interloper and “damaged goods” in the 4th district, which has already attracted several high-quality Republican candidates who can beat Boebert in the GOP primary.

So, the good news is that Boebert may be out of Congress for good! The bad news is that Republicans can nominate a “less crazy reactionary” in the 3rd congressional district who will have a better chance of winning in the general election. Will the GOP nominate a moderate candidate? I doubt it, but let’s see how the primary works out before we give up on flipping Colorado’s 3rd district!

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Concluding Thoughts.

I know, I know! The newsletter did not mention President Biden. But during the week between Christmas and New Year’s Day, no news is good news. The fact that Trump is busy fighting disqualifications from the ballot and appealing a denial of a motion to dismiss criminal charges is bad news for Trump.

It is undeniable that members of Trump’s base do not care about his legal troubles, but independent voters do—at least enough of them to make a difference. And when issues relating to reproductive liberty, gun safety, LGBTQ dignity, the environment, and freedom from bigotry are added to the ballot, we truly have reason to be hopeful and confident going into 2024!

Talk to you tomorrow!