Experts: Smith's "smart motion" undermines Trump's plans to inject "outrageous remarks" at trial

Special counsel Jack Smith urged a judge on Wednesday to bar former President Donald Trump from launching “political attacks” and making "irrelevant" claims in his federal election subversion case in Washington, D.C., including blaming others for the Jan. 6 attack.

“Through public statements, filings, and argument in hearings before the Court, the defense has attempted to inject into this case partisan political attacks and irrelevant and prejudicial issues that have no place in a jury trial,” senior assistant special counsel Molly Gaston wrote in the filing.

Smith's team argues that Trump has hinted at a plan to undermine the credibility of the investigation by promoting entirely unfounded claims, including pushing the false notion about the government's non-existent “coordination with the Biden administration” as well as propagating other unsubstantiated allegations “recycled from the selective and vindictive prosecution motion that he based on anonymous sources in newspaper articles."

The special counsel’s team also requested that the ex-president be barred from using "terminology such as the 'Injustice Department,' 'Biden Indictment' or similar phrases" in front of the jury as it could taint their verdict.

“Given Trump’s outlandish and inflammatory rhetoric in denigrating the trial and defaming the prosecution, Smith wants to bar Trump and his lawyers and his witnesses from making these kinds of outrageous remarks during the trial,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

In jury trials, the presiding judge is responsible for overseeing the proceedings to ensure they are done in accordance with the rules of evidence and procedure, Gershman explained. It is “imperative” for the judge to confirm that the presented evidence is relevant in substantiating the legal issues at hand.

Evidence that lacks relevance, is argumentative, distracting and misleading must be excluded so that jurors “keep their eye on the ball,” and don’t get influenced by “speculation, prejudicial remarks, or theories that have no basis in fact,” he explained.

Smith warned in the filing that the former president "appears poised to blame undercover agents, government informants, or confidential human sources" for the Jan. 6 attack. He pointed to a report Trump shared on Truth Social, where a Metropolitan Police Department officer seems to suggest to colleagues that he should "go undercover as Antifa" within the rioting crowd.

Smith accused Trump of engaging in a baseless public disinformation campaign to discredit the indictment, saying that the former president intends to “introduce evidence of foreign influence” in the 2020 presidential election to show that “he was personally tricked by foreign disinformation” or make claims about the January 6 riot resulting from “efforts by foreign actors to influence public opinion.” His efforts should be excluded to prevent any influence on the fairness of the impending criminal trial, he argued. 

“It has been clear for some time that Trump wants to make this into a political trial by injecting what would otherwise be irrelevant information,” Laurie Levenson, a law professor at Loyola Marymount University, told Salon.

Much of Trump's recent rhetoric has focused on blaming others, making claims like “this is a political witch trial,” Levenson continued. Those are not issues for the jury, it is up to the judge to decide whether there has been “selective or vindictive” prosecution.  

The court has “broad discretion” to exclude evidence that is “unduly prejudicial and not particularly probative” to the issues that the jury needs to decide, Levenson explained, adding that this was a “smart motion” for the special counsel to file.   

“The Trump team is playing by the old adage: ‘the best defense is a good offense,’ but allowing Trump to inject all of the political issues into this case is likely to steer it off course,” Levenson said. “Certainly, evidence that goes to Trump's state of mind would be relevant, but that will probably be fairly limited and would probably have to come primarily from him.”

While U.S. District Judge Tanya Chutkan, who is overseeing the case, may prevent “direct attacks” on the special counsel or Department of Justice and their motivation for bringing charges, Chutkan will likely allow Trump to blame others for the Capitol riots, former federal prosecutor Neama Rahmani told Salon.

“That goes to a defense in the case, and it’s generally reversible error for the court to deny a defendant a factual defense,” Rahmani said. 

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The special counsel will have to face the fact that the standard for "relevant" evidence is generally “fairly low” so Smith needs to focus on how blaming others for Jan. 6  does not mean that Trump is not responsible for his conduct, Levenson explained. 

“It will be a balancing test for the court to discern what probative value Trump's evidence has and whether it is outweighed by the fact that it is likely to mislead and confuse the jury,” she said. 

As of now, the trial is scheduled for March 4, marking the first in a series of four criminal cases against Trump as he campaigns to return to the White House. But, the trial date could be delayed as the ex-president pushes efforts to prolong his trial until after the election, relying on his presidential immunity and double jeopardy defenses. 

The lengthier the delay, and the closer the trial to the election the greater the possibility that a court might find the “convergence too great a burden” on our democratic electoral process, Gershman said.

Levenson added that although the D.C. Circuit is expediting the appeal, its decision is not likely to be the end of the line. If the issue heads to the Supreme Court, realistically this case “probably won't go to trial until this summer, at the earliest.”

Rahmani also noted that “none of this may matter if Chutkan doesn’t lift the stay or pause in the case while the appeals on presidential immunity and double jeopardy are pending. If those appeals last through November and Trump wins the presidential election, he can’t be prosecuted.”