By: Donald V. Watkins
Copyrighted and Published on January 14, 2023
An Editorial Opinion
Today, former president Donald Trump used his Truth Social media platform to issue this personal attack on Special Counsel Jack Smith:
“How come the Biden ‘Prosecutor’ is a nice guy, very friendly with Democrats and RINOS alike, close to Christopher Wray, & pretty much liked & known by everybody, while my ‘Prosecutor’ is a Radical Left Trump HATING Lunatic, whose wife & family get a perfect ‘10’ for spewing Trump HATE, & whose ‘friends’ are the most evil, angry, & disgusting Marxists & Communists in & around Government? They are GRILLING innocent people in Grand Juries for hours, all to ‘get Trump.’ These are Sick Thugs!”
Trump's posted comment is the absolutely wrong move to make in his case. There are legitimate and sound legal challenges Trump can make about Jack Smith’s unfitness to serve as Special Counsel, but his rant on Truth Social presents none of them.
By now, Trump has likely been formally advised that he is the “target” of the federal grand jury probe led by Jack Smith. For reasons that make no sense to me, Trump has refused to publicly release his grand jury “target” letter.
As a “target” of the grand jury investigation, Trump has the ability to place Jack Smith’s unfitness to serve as Special Counsel squarely in front of the grand jury, but his lawyers apparently have not done so.
Instead, they are allowing Trump to make senseless personal attacks on Smith, his wife, and family members in mindless public rants. These personal attacks are placing Trump in further legal jeopardy and they are doing nothing to advance legitimate defenses in his criminal proceedings.
The Right Way to Raise a Pre-Indictment Challenge to Jack Smith’s Unfitness to Serve as Special Counsel
Title 9-11.000 of the Justice Manual affords Trump an appropriate avenue to raise the issue of Jack Smith’s unfitness to serve as Special Counsel directly with the grand jury.
Title 9-11.233 states:
“It is the policy of the Department of Justice ….. that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.”
Title 9-11.152 affords Trump the opportunity to present the issue of Jack Smith’s disqualification to serve as Special Counsel directly to the grand jurors sitting in his case. This issue, alone, is exculpatory in nature.
A formal letter from Trump’s attorneys to Jack Smith is enough to place Smith on actual notice of his duty to step aside in Trump’s case. The letter must not present the “bullshit” reasons asserted in Trump’s rant. Instead, it should present the legitimate reasons articulated in my November 25, 2022 article.
Then, Trump should invoke and utilize the legal option to present the issue of Jack Smith’s unfitness to serve as Special Counsel directly with the grand jury.
This avenue is a much wiser course of action, but only if Trump is capable of telling the truth under oath in a grand jury room.
Who is in Charge of the Grand Jury?
While prosecutors typically conduct the grand jury proceedings, they are NOT in charge of the proceedings. The foreperson of the grand jury, who is elected by fellow grand jurors, is the person in charge.
Prosecutors are “guests” in the grand jury proceedings just like witnesses and other authorized persons. A strong foreperson will run his/her grand jury. With the concurrence of his/her fellow grand jurors, he/she sets the tone and agenda for how the probe proceeds.
Weak forepersons allow prosecutors to run the proceedings on an unfettered basis. They never challenge anything prosecutors say or do.
Once he is in the grand jury room, Trump should request the foreperson to remove all prosecutors from the grand jury room while he is testifying. Then, Trump can make his showing on Jack Smith’s unfitness without any fear of, or intimidation from, federal prosecutors.
The grand jury has the power to remove any person from its midst, at any time, for any reason it deems appropriate.
The grand jury has the power to subpoena witnesses to corroborate or dispute Trump’s claims. It may even compel testimony from Jack Smith and others on the disqualification claims raised by Trump.
If the grand jury believes that Jack Smith is unfit to serve as a Special Counsel in its Trump probe, it may disregard some or all of the evidence presented to it to date and request Attorney General Merrick Garland to appoint a replacement Special Counsel.
Baffled by Trump’s Actions
Why Trump’s lawyers are not pursuing this course of action with the grand jury for presenting Jack Smith’s unfitness to serve as the Special Counsel completely baffles me. It looks like a case of professionally blind criminal attorneys leading a nervous and blind client.
Unless there is a prompt and serious correction in how Trump’s attorneys are defending him, he is guaranteed an unfavorable outcome in this criminal case and a very unpleasant experience in the federal prison system.