There Will Be No Trump Mini-trial.

As predicted long ago, Jack Smith is reportedly not big on the idea of a mini-trial on the immunity issue.

Greetings!

If you’re a regular listener of the Jack podcast, then the news from Bloomberg today will come as no surprise. Here’s what they’re reporting:

Special Counsel Jack Smith has decided against seeking a major hearing to present evidence in the election-interference case against Donald Trump before voters go to the polls Nov. 5, according to people familiar with the matter.

The move means that it’s unlikely a so-called mini-trial, which would include evidence and testimony from possible blockbuster witnesses like former Vice President Mike Pence, would take place before the presidential election.

Instead, Smith and his team are carefully revising the case against Trump, according to the people familiar, who asked not to be named discussing a confidential matter.

Great fact reporting based on a confidential source. But here’s where Bloomberg adds some editorial opinion - and frankly - gets it wrong:

The decision is a win for Trump and his lawyers, who have fought efforts to reveal the substance of allegations against the former president.

This is decidely NOT a win for Donald. I know that the media tried to sell you on this idea of a big ol’ mini-trial with witnesses and testimony and evidence ahead of the election, but that was never going to happen for a few very obvious reasons.

Jack Smith has never been an out-loud guy. In multiple filings, he’s asked to keep things under wraps because he does not want this case to be tried in the court of public opinion. For example, in August, 2023, Special Counsel filed a motion asking Judge Chutkan for a protective order over discovery materials (evidence handed over to Donald by the government) in the DC case. Jack Smith wrote:

All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public. Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys and others associated with legal matters pending against him. And in recent days, regarding this case, the defendant has issued multiple posts--either specifically or by implication--including the following (refers to the IF YOU COME AFTER ME I’M COMING AFTER YOU post on Truth Social), which the defendant posted just hours ago. If the defendant were to begin issuing public posts using details--or, for example, grand jury transcripts--obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case.

And let’s take this down to Florida where you’ll recall Judge Cannon ordered Jack Smith’s witness list to be unsealed. After a long battle that almost ended up at the 11th circuit for what Jack Smith called a clear legal error that would result in manifest injustice, Judge Cannon relented to his motion for reconsideration and reluctantly kept the witness list sealed. In that motion practice, Jack Smith argued:

That discovery material, if publicly docketed in unredacted form as the Court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment, as has already happened to witnesses, law enforcement agents, judicial officers, and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved.

But that wasn’t the only reason. He also wrote:

The materials also include information pertaining to ongoing investigations, the disclosure of which could compromise those investigations and identify uncharged individuals.

So remember all those discussions we’ve had about why the Justice Department doesn’t talk about ongoing investigations (unless you’re Bill Barr or Mike Sherwin or some other corrupt motherfucker)? Yeah, they want to protect the integrity of the proceeding. Tying the case in the court of public opinion has never ever ever been something a good prosecutor wants to do. The only times I’ve ever seen it done was when Barr talked (lied) publicly about mail in ballots in Texas, or when Durham wanted to issue an “interim” report at Trump’s behest ahead of the 2020 election which resulted in his deputy resiging in protest because it was such a stupid idea. Or when Mike Fuckin Sherwin (I’ve decided that’s his full name) thought it would be awesome to go on 60 Minutes and tell everyone and their mother that he was working on Seditious Conspiracy charges for the Oath Keepers. That was such a tremendously bad idea that Merrick Garland referred him to the disciplinary council and Judge Mehta called everyone back into court and was all “what the fuck” (I’m paraphrasing) and Sherwin resigned before he was fired.

There are several case citations for why the public shouldn’t have access to discovery material or evidence including:

Nickens
Chicago Tribune Co
Press-Enterprise Co. v. Superior Court of California for Riverside County
United States v. Valenti
United States v. Anderson
United States v. Kravetz
United States v. Sleugh
United States v. Pepe
United States v. Cohen

Jack Smith also writes A contrary rule would turn the principles of discovery on their head and imperil the ability of prosecutors to provide early and thorough discovery as the Government has done here.

In opposing the unsealing requests by the defendants, the Government objected to “the unsealing or public dissemination of any information in the motions brief or its exhibits that (a) reveals the identity of any potential Government witness; (b) reveals personal identifying information for any potential Government witness; or (c) constitutes Jencks Act material for any potential Government witness.” In so doing, the Government emphasized three main concerns: (1) the need to protect “witnesses from harassment and intimidation”; (2) the need to avoid “infecting the testimony of other witnesses or unnecessarily influencing the jury pool”; and (3) the need to protect personal privacy, including by avoiding disclosure of “uncharged conduct as to one or more individuals.

Why doesn’t the government enjoy influencing the jury pool? Why does Donald REALLY ENJOY influencing the jury pool? Because if the jury pool is tainted and Donald is convicted, he will have a strong appeal to have his conviction thrown out because he was unable to receive a fair trial by a jury of his peers in the district where the crime was committed.

So preventing a big, loud, public hearing isn’t a win for Donald. It’s a win for the government. It’s a win for the integrity of the proceeding. It’s a win for justice, even though it might not feel like it. It’s a win for the witnesses who would most certainly be subject to harassment, intimidation, and threats. It’s a win for sustaining a conviction on appeal. And whether you agree with my opinion on it or not, it’s what I have long predicted Jack Smith would do regardless of some folks in the media positing a full on mini-trial with Mike Pence giving testimony on the stand.

Our justice system has these measures in place to protect the rights of the criminal defendants. It’s the very reason we argued against presidential immunity, and why Justice Sotomayor said during the April 25th oral argument:

There is no failsafe system of government, meaning, we have a judicial system that has layers and layers of protection for the accused in the hopes that the innocent will go free. We fail. Routinely. But we succeed more often than not. In the vast majority of cases, the innocent do go free. But we still fail. We've executed innocent people. Having said that, Alito went through a step by step of all the mechanisms that could potentially fail. In the end, if it fails completely, it's because we've destroyed our democracy on our own.

That’s the argument against “without presidential immunity, there’d be a cacophony of rogue prosecutors charging former presidents with crimes all over the place!”

I know we all wanted to see some kind of justice ahead of the election, but we also have to keep in mind that it would interfere with the election, which is why the DoJ has that unwritten rule that it won’t take any overt investigatory steps within 60 days of an election - and I think that a pre-trial hearing exposing Trump’s crimes would constitute a proceeding that the DoJ simply wouldn’t want to engage in so close to an election. Bad things happen when they do - like Comey announcing the re-opening of the email probe 11 days before the election in 2016. Or Durham trying to file an interim report ahead of the 2020 election.

And maybe that’s the reason Jack Smith isn’t holding a mini-trial. Maybe he will after the election as the Bloomberg article infers, but I doubt it. He’s just not the kind of guy to be loud, try things in the court of public opinion, or risk tainting the jury pool, ongoing investigations, or the integrity of the proceedings. But I will say this - IF Jack Smith wanted a mini-trial and Merrick Garland shot the idea down, the special counsel regulations require Garland report that to Congress. So if that happened, which I doubt it did, we will hear about it.

And if he’s going to file a superseding indictment against the co-conspirators, we will know by the end of next week given the 60 day election window.

~AG