Former DOJ Official Says Jack Smith’s Rush To Put Trump On Trial Is ‘Wildly Unfair’

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Special counsel Jack Smith’s rush to put former President Donald Trump on trial before the 2024 election is “wildly unfair” and may violate Department of Justice (DOJ) rules, Harvard law professor and former DOJ official Jack Goldsmith said on Wednesday.

Trump’s bid to dismiss his election interference based on presidential immunity is back before the Supreme Court just months after the justices declined Smith’s request to quickly take up the issue without allowing the appeals court to weigh in, which would have helped speed up Trump’s trial process. Smith’s rush to put the former president on trial appears to violate a DOJ rule that bars prosecutors from selecting timing of actions for the “purpose of affecting any election,” as well as “the normal rules of fairness to a defendant,” Goldsmith said in a Wednesday Lawfare column.

“If this were any other defendant than Donald Trump, the rush to trial—which cannot possibly give the Trump legal team adequate time to prepare its defense—would be deemed wildly unfair,” Goldsmith said. “Prosecutors and judges typically give defendants significantly more temporal leeway in trials of lesser magnitude with less severe charges.”

Special counsel Jack Smith speaks to members of the media at the US Department of Justice building in Washington, DC, on August 1, 2023. (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)

WASHINGTON, DC – AUGUST 01: Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump at the Justice Department on August 1, 2023 in Washington, DC. (Photo by Alex Wong/Getty Images)

Goldsmith wrote that the potential adverse consequences of rushing to trial “go far beyond a mere violation of a Justice Department rule.” (RELATED: It’s A Make-Or-Break Week For Trump’s Four Criminal Cases)

“If Trump is convicted and is seen to lose the election even in part because President Biden’s Justice Department violated norms in rushing Trump to trial (and in giving Trump inadequate time to prepare), then the trial, and the election outcome, could be deemed illegitimate and unfair by approximately half the country,” he said. “…The damage to our institutions from this outcome—to belief in the legitimacy of the presidential electoral process, and to the integrity of the Justice Department and the possibility of apolitical justice—is unknowable, but it is very likely to be serious and with us for a long time.”

Proceedings in Trump’s case are on hold pending his presidential immunity appeal, and the judge has already vacated the scheduled March 4 trial date. The Supreme Court’s speed in resolving the matter now will determine when the trial at the district court can move forward.

“Normally the Court, if it grants at this stage, would set the case for oral argument in April and decide the case by late June,” he said. “If the Court goes faster, the only conceivable rationales for doing so would be the political ones that have motivated Smith to rush to trial, canvassed above. It is hard to see why the Court would want to alter its normal operation for those reasons and associate itself with the attendant consequences of rushing, and responsibility for those consequences.”

Regardless, any decision the court makes “with respect to the flurry of legal maneuverings related to Trump’s trial could impact the election,” he said.

“I hope that to the extent possible, the Court in this wildly unprecedented context follows the same rules and principles that it would follow if one of the parties to the case were not an indicted Donald Trump running for presidential office,” Goldsmith wrote.

The justices have requested Smith respond to Trump’s request to stay the D.C. Circuit Court’s ruling finding he does not have presidential immunity by Feb. 20.

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