Elie
Honig,
the
former
prosecutor
turned
cable
news
legal
analyst,
has
a
new
piece
in
New
York
magazine
bemoaning
special
prosecutor
Jack
Smith’s
latest
filing
in
Trump’s
January
6
case.
There
was
something
familiar
about
it…
And
while
the
king
was
looking
down,
the
Jester
stole
his
thorny
crown.
That’s
not
exactly
fair.
Turley’s
Trumpy
screeds
routinely
spout
legal
nonsense
when
he’s
just
not
making
up
facts.
Honig’s
work
presents
more
subtlety
—
more
reliance
on
just
casually
ignoring
basic
issues
to
further
his
chosen
narrative.
Like
when
he
parachuted
into
the
New
York
criminal
case
with
analysis
so
far
afield
of
the
facts
and
law
he
got
dragged
to
hell
and
back
by
those
actually
keeping
up
with
the
case.
So
it’s
sort
of
a
trend.
And
while
the
notes
you
DON’T
play
makes
for
good
jazz,
it’s
makes
piss-poor
legal
analysis.
In
Honig’s
defense,
the
article
recites
standard
operating
procedure
in
a
federal
criminal
case
and,
to
that
extent,
is
correct…
in
a
vacuum.
Except
United
States
v.
Trump
doesn’t
exist
in
a
vacuum
unless
you
mean
the
jumbled
refuse
left
in
the
bag
after
unplugging
the
cleaner.
It’s
about
a
massive
news
event,
involving
one
of
the
most
notorious
figures
in
the
world,
that’s
been
delayed
over
and
over
either
by
the
defendant
or
his
personal
Glee
Club
on
the
Supreme
Court.
To
borrow
from
another
political
figure
at
random,
the
case
exists
in
the
context
of
all
in
which
it
lives
and
what
came
before.
Nearly
everything
about
the
posture
of
this
case
is
exceptional,
rendering
any
“legal
analysis”
based
on
prosecuting
a
bog
standard
tax
evasion
charge
all
but
useless.
This
is
like
the
mayor
in
Jaws
telling
the
beach,
“well,
ordinarily,
there
aren’t
any
sharks.”
First,
this
is
backward.
The
way
motions
work
—
under
the
federal
rules,
and
consistent
with
common
sense
—
is
that
the
prosecutor
files
an
indictment;
the
defense
makes
motions
(to
dismiss
charges,
to
suppress
evidence,
or
what
have
you);
and
then
the
prosecution
responds
to
those
motions.
Makes
sense,
right?
It’s
worked
for
hundreds
of
years
in
our
courts.
Normally,
this
would
be
true.
Except
the
motion
in
question
seeks
a
ruling
on
presidential
immunity
which
is
a
motion
Trump
HAS
ALREADY
RAISED.
This
is
the
argument
that
got
the
case
appealed
—
first
to
the
D.C.
Circuit
and
then
to
the
Supreme
Court
—
in
the
first
place.
If
there’s
anyone
expecting
the
defense
to
shrug
off
the
immunity
argument
now
that
the
case
has
been
remanded
to
Judge
Chutkan,
I
have
a
bridge
to
sell.
But
the
defense
has
also
made
clear
its
intention
to
gum
up
the
process
and
delay
the
matter
indefinitely.
So,
yes,
Smith’s
motion
seeking
a
ruling
on
Trump’s
favored
defense
before
Trump
formally
files
that
motion
is
irregular.
But
it’s
only
happening
because
of
Trump’s
dilatory
strategy.
In
fact,
at
the
very
hearing
that
Honig
cites
where
Judge
Chutkan
called
it
“procedurally
irregular”
for
Smith
to
file
first,
Judge
Chutkan
also
said
that
Trump’s
lawyers
could
file
a
simultaneous
motion
to
avoid
any
perceived
prejudice
from
responding
second.
Or
as
she
put
it,
“We
can
all
walk
and
chew
gum
at
the
same
time.”
That
was
the
beginning
of
September.
The
defense
had
a
whole
month
to
go
ahead
and
get
its
motion
together.
Honig
elides
this
issue
in
his
righteous
rage
over
allowing
Smith
to
ask
for
a
ruling
on
Trump’s
primary
grounds
for
dismissal.
But
Smith
argued
that
a
compelling
reason
to
let
him
go
first
and
set
the
stage
for
the
immunity
argument
was
to
avoid
the
defense
trying
to
string
this
out
forever
with
piecemeal
immunity
arguments.
That
would
seem
to
make
this
move
in
the
interest
of
judicial
economy!
Probably
something
worth
mentioning…
though
Honig
does
not.
Which
brings
us
to
the
second
point:
Smith’s
proactive
filing
is
prejudicial
to
Trump,
legally
and
politically.
It’s
ironic.
Smith
has
complained
throughout
the
case
that
Trump’s
words
might
taint
the
jury
pool.
Accordingly,
the
special
counsel
requested
a
gag
order
that
was
so
preposterously
broad
that
even
Judge
Chutkan
slimmed
it
down
considerably
(and
the
Court
of
Appeals
narrowed
it
further
after
that).Yet
Smith
now
uses
grand-jury
testimony
(which
ordinarily
remains
secret
at
this
stage)
and
drafts
up
a
tidy
165-page
document
that
contains
all
manner
of
damaging
statements
about
a
criminal
defendant,
made
outside
of
a
trial
setting
and
without
being
subjected
to
the
rules
of
evidence
or
cross-examination,
and
files
it
publicly,
generating
national
headlines.
You
know
who’ll
see
those
allegations?
The
voters,
sure
—
and
also
members
of
the
jury
pool.
A
few
paragraphs
before
this,
Honig
took
a
swipe
at
the
filing
as
unnecessary
because
“[t]he
story’s
structure
is
the
same
as
we’ve
long
known.”
You
really
have
to
pick
one,
bud.
Is
this
tainting
the
jury
pool
or
old
news?
But,
again,
Honig
is
right
that
this
isn’t
material
that
would
normally
end
up
going
public.
But,
also
again,
he’s
ignoring
that
Trump’s
defense
strategy
is
the
only
reason
this
is
happening.
The
Supreme
Court,
following
Trump’s
lead,
created
a
standard
that
not
only
immunizes
presidents
from
official
acts,
but
from
using
evidence
of
official
acts
even
to
prosecute
a
president
engaged
in
unofficial
act
criminality.
While
securing
that
ruling
was
a
real
coup
for
Trump
—
a
successful
one
for
him,
for
a
change
—
it
drew
the
battlelines
for
the
next
immunity
fight
around
which
conversations
and
actions
were
and
were
not
“official.”
And
that’s
how
the
docket
ends
up
with
a
voluminous
motion
filled
with
grand
jury
testimony
focused
on
who
Trump
talked
to
when
and
in
what
capacity.
It’s
the
natural
and
logical
consequence
of
the
standard
concocted
by
the
Supreme
Court
last
Term.
Honig
doesn’t
even
acknowledge
this,
much
less
suggest
how
an
immunity
argument
would
be
resolved
without
this
filing.
Even
if
Judge
Chutkan
ordered
Trump
to
file
the
motion
first,
Smith’s
response
would
look…
pretty
much
exactly
like
this.
By
the
way,
this
is
also
the
answer
to
Honig’s
snarky
aside
about
the
redactions
in
the
filing
when
he
said
Smith
“redacted
out
a
few
obvious
names
(who
ever
might
“Arizona
Governor
[Redacted
P-16]”
be?),
and
made
the
rest
public.”
Yeah,
because
the
titles
involved
are
pretty
significant
when
the
standard
is
“was
this
a
conversation
that
a
president
would
have
in
the
ordinary
course
of
their
duties.”
So
it
matters
if
Trump
called
a
governor
to
arrange
flood
relief
or
to
ask
them
to
find
more
ballots.
Bumbling
to
a
conclusion,
Honig
points
to
the
DOJ
Manual’s
edict
that
“Federal
prosecutors…
may
never
select
the
timing
of
any
action,
including
investigative
steps,
criminal
charges,
or
statements,
for
the
purpose
of
affecting
any
election.”
Remember,
Smith
begged
the
judge
to
flip
the
rules
on
their
head
so
he
could
file
this
document
first,
and
quickly
—
“any
action,”
by
any
reasonable
definition
—
with
the
election
right
around
the
corner.
Anyone
who
objected
to
James
Comey’s
outrageous
announcements
about
the
Hillary
Clinton
investigation
on
the
eve
of
the
2016
election
should
feel
the
same
about
Smith’s
conduct
now.
What’s
the
distinction?
Both
violated
ordinary
procedure
to
take
public
steps,
shortly
before
an
election,
that
plainly
would
have
an
impact
on
that
election.
Well,
I
did
NOT
object
to
Comey’s
announcements
about
the
Clinton
emails.
It’s
also
an
unfair
characterization
of
how
all
that
went
down
because
Comey
didn’t
announce
shit.
He
wrote
a
congressional
committee
to
clarify
that
when
he
months
earlier
testified
that
the
FBI
had
searched
everything,
it
turned
out
there
was
something
else
to
review
but
that
there
was
no
reason
to
believe
it
would
be
anything
but
redundant.
They
decided
to
make
this
mundane
notification
a
big
deal
(perhaps
in
a
way
that
Comey
should’ve
predicted)
and
it
turned
out
the
new
data
was,
in
fact,
redundant.
Context
matters
and
so
does
the
underlying
purpose
of
all
these
rules.
Defendants
move
first
because
the
defense
has
a
right
to
define
its
strategy
and
streamline
the
pre-trial
process…
which
doesn’t
matter
when
the
argument
is
already
teed
up
and
there’s
a
history
of
dilatory
tactics.
Factual
disclosures
shouldn’t
litter
the
pre-trial
process…
unless
the
specific
argument
the
defense
makes
requires
a
ruling
based
on
grand
jury
testimony.
And,
importantly,
the
DOJ
shouldn’t
take
an
action
that
could
impact
an
impending
election…
except
when
they
took
action
months
and
months
beforehand
and
none
of
this
would
be
happening
weeks
before
an
election
if
Trump
hadn’t
set
out
on
a
strategy
to
drag
this
out
forever
and
his
cronies
on
the
Supreme
Court
hadn’t
dutifully
sat
on
the
case
until
the
last
gasps
of
the
Term.
If
Honig
wanted
to
take
issue
with
these
conclusions,
he
could
easily
explain
why
—
given
all
that
context
—
there’s
still
overriding
reasons
to
stick
with
the
standard
procedure
that
Trump
has
shown
every
interest
in
hacking.
And
we
could
have
that
debate
as
a
legal
community,
but
he
doesn’t
want
to
get
into
that
so
he’s
just
not
going
to
mention
any
of
it.
Besides,
getting
into
that
sort
of
nuanced
and
honest
discussion
about
the
state
of
the
case
is
not
the
sort
of
analysis
that
earns
someone
the
love
and
admiration
of
that
audience
of
one.
Respect
the
hustle.
Jack
Smith’s
October
Cheap
Shot
[New
York]
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
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if
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Joe
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