Elie Honig Makes Pitch To Become Donald Trump's Favorite Legal Analyst
Move over, Turley! Take a seat, Dershowitz! Donald Trump may have a new favorite cable news law talkin' guy.
Elie Honig, the former prosecutor turned cable news legal analyst, has a new piece in New York magazine bemoaning special prosecutor Jack Smith’s latest filing in Trump’s January 6 case.
There was something familiar about it…
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And while the king was looking down, the Jester stole his thorny crown.
That’s not exactly fair. Turley’s Trumpy screeds routinely spout legal nonsense when he’s just not making up facts. Honig’s work presents more subtlety — more reliance on just casually ignoring basic issues to further his chosen narrative. Like when he parachuted into the New York criminal case with analysis so far afield of the facts and law he got dragged to hell and back by those actually keeping up with the case. So it’s sort of a trend.
And while the notes you DON’T play makes for good jazz, it’s makes piss-poor legal analysis.
In Honig’s defense, the article recites standard operating procedure in a federal criminal case and, to that extent, is correct… in a vacuum.
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Except United States v. Trump doesn’t exist in a vacuum unless you mean the jumbled refuse left in the bag after unplugging the cleaner. It’s about a massive news event, involving one of the most notorious figures in the world, that’s been delayed over and over either by the defendant or his personal Glee Club on the Supreme Court. To borrow from another political figure at random, the case exists in the context of all in which it lives and what came before.
Nearly everything about the posture of this case is exceptional, rendering any “legal analysis” based on prosecuting a bog standard tax evasion charge all but useless. This is like the mayor in Jaws telling the beach, “well, ordinarily, there aren’t any sharks.”
First, this is backward. The way motions work — under the federal rules, and consistent with common sense — is that the prosecutor files an indictment; the defense makes motions (to dismiss charges, to suppress evidence, or what have you); and then the prosecution responds to those motions. Makes sense, right? It’s worked for hundreds of years in our courts.
Normally, this would be true. Except the motion in question seeks a ruling on presidential immunity which is a motion Trump HAS ALREADY RAISED. This is the argument that got the case appealed — first to the D.C. Circuit and then to the Supreme Court — in the first place. If there’s anyone expecting the defense to shrug off the immunity argument now that the case has been remanded to Judge Chutkan, I have a bridge to sell. But the defense has also made clear its intention to gum up the process and delay the matter indefinitely.
So, yes, Smith’s motion seeking a ruling on Trump’s favored defense before Trump formally files that motion is irregular. But it’s only happening because of Trump’s dilatory strategy. In fact, at the very hearing that Honig cites where Judge Chutkan called it “procedurally irregular” for Smith to file first, Judge Chutkan also said that Trump’s lawyers could file a simultaneous motion to avoid any perceived prejudice from responding second. Or as she put it, “We can all walk and chew gum at the same time.”
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That was the beginning of September. The defense had a whole month to go ahead and get its motion together. Honig elides this issue in his righteous rage over allowing Smith to ask for a ruling on Trump’s primary grounds for dismissal.
But Smith argued that a compelling reason to let him go first and set the stage for the immunity argument was to avoid the defense trying to string this out forever with piecemeal immunity arguments. That would seem to make this move in the interest of judicial economy! Probably something worth mentioning… though Honig does not.
Which brings us to the second point: Smith’s proactive filing is prejudicial to Trump, legally and politically. It’s ironic. Smith has complained throughout the case that Trump’s words might taint the jury pool. Accordingly, the special counsel requested a gag order that was so preposterously broad that even Judge Chutkan slimmed it down considerably (and the Court of Appeals narrowed it further after that).
Yet Smith now uses grand-jury testimony (which ordinarily remains secret at this stage) and drafts up a tidy 165-page document that contains all manner of damaging statements about a criminal defendant, made outside of a trial setting and without being subjected to the rules of evidence or cross-examination, and files it publicly, generating national headlines. You know who’ll see those allegations? The voters, sure — and also members of the jury pool.
A few paragraphs before this, Honig took a swipe at the filing as unnecessary because “[t]he story’s structure is the same as we’ve long known.” You really have to pick one, bud. Is this tainting the jury pool or old news?
But, again, Honig is right that this isn’t material that would normally end up going public. But, also again, he’s ignoring that Trump’s defense strategy is the only reason this is happening. The Supreme Court, following Trump’s lead, created a standard that not only immunizes presidents from official acts, but from using evidence of official acts even to prosecute a president engaged in unofficial act criminality. While securing that ruling was a real coup for Trump — a successful one for him, for a change — it drew the battlelines for the next immunity fight around which conversations and actions were and were not “official.”
And that’s how the docket ends up with a voluminous motion filled with grand jury testimony focused on who Trump talked to when and in what capacity. It’s the natural and logical consequence of the standard concocted by the Supreme Court last Term. Honig doesn’t even acknowledge this, much less suggest how an immunity argument would be resolved without this filing. Even if Judge Chutkan ordered Trump to file the motion first, Smith’s response would look… pretty much exactly like this.
By the way, this is also the answer to Honig’s snarky aside about the redactions in the filing when he said Smith “redacted out a few obvious names (who ever might “Arizona Governor [Redacted P-16]” be?), and made the rest public.” Yeah, because the titles involved are pretty significant when the standard is “was this a conversation that a president would have in the ordinary course of their duties.” So it matters if Trump called a governor to arrange flood relief or to ask them to find more ballots.
Bumbling to a conclusion, Honig points to the DOJ Manual’s edict that “Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”
Remember, Smith begged the judge to flip the rules on their head so he could file this document first, and quickly — “any action,” by any reasonable definition — with the election right around the corner. Anyone who objected to James Comey’s outrageous announcements about the Hillary Clinton email investigation on the eve of the 2016 election should feel the same about Smith’s conduct now. What’s the distinction? Both violated ordinary procedure to take public steps, shortly before an election, that plainly would have an impact on that election.
Well, I did NOT object to Comey’s announcements about the Clinton emails. It’s also an unfair characterization of how all that went down because Comey didn’t announce shit. He wrote a congressional committee to clarify that when he months earlier testified that the FBI had searched everything, it turned out there was something else to review but that there was no reason to believe it would be anything but redundant. They decided to make this mundane notification a big deal (perhaps in a way that Comey should’ve predicted) and it turned out the new data was, in fact, redundant.
Context matters and so does the underlying purpose of all these rules. Defendants move first because the defense has a right to define its strategy and streamline the pre-trial process… which doesn’t matter when the argument is already teed up and there’s a history of dilatory tactics. Factual disclosures shouldn’t litter the pre-trial process… unless the specific argument the defense makes requires a ruling based on grand jury testimony. And, importantly, the DOJ shouldn’t take an action that could impact an impending election… except when they took action months and months beforehand and none of this would be happening weeks before an election if Trump hadn’t set out on a strategy to drag this out forever and his cronies on the Supreme Court hadn’t dutifully sat on the case until the last gasps of the Term.
If Honig wanted to take issue with these conclusions, he could easily explain why — given all that context — there’s still overriding reasons to stick with the standard procedure that Trump has shown every interest in hacking. And we could have that debate as a legal community, but he doesn’t want to get into that so he’s just not going to mention any of it.
Besides, getting into that sort of nuanced and honest discussion about the state of the case is not the sort of analysis that earns someone the love and admiration of that audience of one.
Respect the hustle.
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
