Government

Yeah, The Timing Of The Special Counsel Brief Is Political, And You Can Thank Chief Justice Roberts For That

Kwitcherbitchin.

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John Roberts Confirmation Hearings Continue For A Third Day

(Photo by Alex Wong/Getty Images)

On Wednesday, Special Counsel Jack Smith’s brief defending his superseding indictment of Donald Trump was unsealed on the public docket. As per Judge Tanya Chutkan’s instruction, the prosecutor defended the permissibility of evidence and specific conduct in light of the Supreme Court’s immunity decision. And as per his custom, Trump responded by losing his shit on social media.

“ELECTION INTERFERENCE!” he screeched, adding that “FOR 60 DAYS PRIOR TO AN ELECTION, THE DEPARTMENT OF INJUSTICE IS SUPPOSED TO DO ABSOLUTELY NOTHING THAT WOULD TAINT OR INTERFERE WITH SAID ELECTION. THEY DISOBEYED THEIR OWN RULE IN FAVOR OF COMPLETE AND TOTAL ELECTION INTERFERENCE. I DID NOTHING WRONG, THEY DID! THE CASE IS A SCAM, JUST LIKE ALL OF THE OTHERS, INCLUDING THE DOCUMENTS CASE, WHICH WAS DISMISSED!”

In fact, there is no “60 Day Rule,” as such. Every even-numbered year since 2008, the attorney general has sent out virtually the same memo noting that “Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” It also reminds DOJ employees that “It is critical that each of us complies with the Hatch Act.”

Trump refused to discipline Kellyanne Conway for repeated and egregious Hatch Act violations, even as she scoffed “Let me know when the jail sentence starts.” And Trump’s Attorney General Bill Barr flouted the 60-day rule, hyping an investigation of supposedly discarded mail-in ballots in Luzerne, Pennsylvania in mid-September of 2024. The reality was that seven ballots were inadvertently discarded by a person who was “mentally impaired,” according to a DOJ Inspector General investigation, which Barr refused to cooperate with.

But even assuming that Trump’s newfound concern for Justice Department norms is genuine [COUGH], he’s just wrong. The “rule” pertains to investigative steps, charging decisions, and public statements timed by the prosecutors to affect the outcome of an election. It does not apply to judicially mandated court filings, such as a brief in a pending criminal case.

But if the former president is looking to blame someone for this brief becoming public on the eve of the election, he ought to shift his focus a few blocks — specifically from Main Justice on Pennsylvania Avenue to One First Street, where six of his buddies did their level best to ensure that this thing landed back in the trial court on the eve of the election.

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To wit, in December of 2023, the Supreme Court rebuffed the Special Counsel’s request to expedite the appeal of the wildly political immunity ruling in Trump’s election interference case. And after the DC Circuit issued a unanimous and thorough ruling, the Supreme Court junked their work, then sat on the case, refusing to issue their own verdict until the very last day of the term. As the New York Times reports, the Chief Justice made damn sure that the opinion would come out as and when it did on July 1, which meant that it wasn’t remanded to the DC Circuit until August 2. And so, on August 3, it landed back in Judge Chutkan’s lap with the instruction from the Court’s conservatives “to determine in the first instance—with the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial.”

Then when the trial judge asked the parties how they’d like to proceed, Trump’s lawyers proposed to do functionally nothing for the rest of the year, demanding that the court allow them to spend that time briefing a motion to dismiss based on the theory that the special counsel was illegally appointed. This motion is both untimely, since the deadline was more than 18 months ago, and functionally irrelevant for the trial proceedings, since the DC Circuit ruled on the issue during Special Counsel Robert Mueller’s investigation. And unlike Judge Aileen Cannon, Judge Chutkan is not about to ignore binding precedent.

As they’ve done at every juncture, Trump’s lawyers squandered the opportunity to make a real legal argument and propose a rational briefing schedule. Instead they opted to shout inanities about “the Biden DOJ” doing WITCH HUNTS to Trump in an attempt to tank his electoral prospects. You pay your money, you take your chances.

The special counsel responded by securing a superseding indictment that he claims comports with the Supreme Court’s immunity ruling, and then offering to provide the court with “the benefit of briefing we lack—whether Trump’s conduct in this area qualifies as official or unofficial” in three weeks time. Given the choice between NOW and NEVER, Judge Chutkan chose the former and ordered the special counsel to get on with it. That’s not a violation of DOJ policy, which anyway doesn’t create a private right for any litigant. And it’s not because Special Counsel Smith is sitting in some dark lair in the basement of the DOJ, stroking his beard and saying “If it’s what you say I love it especially later in the summer.”

The timing of this filing is almost entirely thanks to the Supreme Court, who ensured that this case wound up back on the trial docket the first week in August. And considering that SCOTUS gave him a get-out-of-jail free card and promised to do whatever it takes to ensure that he never faces justice, Trump should just shut up for once in his bloody life and say “thank you.”

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US v. Trump [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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