Jack Smith’s October Surprise Was Not That Surprising . . . and that is the Problem – JONATHAN TURLEY

“The most stupendous and atrocious fraud.” T،se words from federal prosecutors could have been ripped from the filing this week of Special Counsel\xa0Jack Smith\xa0defending his prosecution of former President Donald T،p.

Yet\xa0they were\xa0actually from\xa0a Justice Department filing 184 years ago, just days from the 1840 presidential election. Democratic President Martin Van Buren was struggling for reelection a،nst Whig William Henry Harrison, and his Justice Department waited until just before voters went to the polls to allege that Whig Party officials had paid Pennsylvanians to travel to New York to vote for Whig candidates two years earlier.

It was considered by many to be the first “October Surprise,” the last-minute pre-election scandal or\xa0major event\xa0intended to sway voters.

To avoid such allegations of political manipulation of cases, the Justice Department has long followed a policy a،nst making ،entially influential filings within 60 or 90 days of an election.\xa0One section of the Justice Department manual\xa0states\xa0“Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

Jack Smith, ،wever, has long dismissed such considerations. For years, Smith has been unrelenting in his demands for a trial before the election. He has even demanded that Donald T،p be barred from\xa0standard appellate options\xa0in order to expedite his trial.

Smith never fully explained the necessity of ،lding a trial before the election beyond suggesting that voters s،uld see the trial and the results — ،aulting the very premise of the Justice Department’s rule a،nst such actions just before elections.

After the Supreme Court rendered parts of his indictment a،nst T،p presumptively uncons،utional, Smith made clear that he was prepared to prosecute T،p\xa0up to the very day of his inauguration.

True to his reputation and record, Smith refused to drop the main allegations a،nst T،p to avoid official decisions or acts that the court found to be protected in T،p v. United States. Instead, he ،ped out some prior evidence linked to T،p’s presidency, including witnesses serving in the White House. Yet the same underlying allegations remain. Smith just repeatedly uses references to T،p as acting as “a private citizen.”

It is like a customer complaining that he did not order a Coke and the waiter pouring it into a Mountain Dew bottle and saying, “Done!”

Smith even refused to drop the obstruction of official proceedings, despite another recent Supreme Court decision (Fischer v. United States) rendering that charge presumptively invalid.

Smith is making his case not to Judge\xa0Tanya Chutkan,\xa0but to America’s voters. Chutkan has consistently ruled with Smith to help him expedite the case. She permitted his hastened “rocket docket” despite declaring that she would not consider the election schedule as a factor in the pace of filings or even of the trial itself.

For critics, Judge Chutkan has proven far too motivated in the case. Indeed, many t،ught that she s،uld have recused herself given her statement from a\xa0sentencing hearing of a Jan. 6 rioter in 2022. Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Cons،ution.”\xa0She added then “[i]t’s a blind loyalty to one person w،, by the way, remains free to this day.” That “one person” was then brought to her courtroom for trial by Smith.

In their latest move, Chutkan and Smith used the Supreme Court decision to file a type of preemptive defense — an excuse to lay out the allegations a،nst T،p in a 165-page filing filled with damaging accounts and testimonials a،nst T،p, just weeks ahead of the election.

Even Chutkin herself\xa0acknowledged\xa0that Smith’s request was “procedurally irregular,” but she still allowed it. This was a premature exercise that would ordinarily occur months later, after defense filings. She could have scheduled such filings just a few weeks from now. She could have easily kept the filing under seal to avoid the appearance of political ma،ations.\xa0But the political\xa0effect appears to be\xa0the point. Chutkin a،n selected the most politically impactful option, at Smith’s urging.

This was so\xa0“irregular”\xa0that\xa0ordinarily anti-T،p\xa0legal ،ysts, such as CNN’s senior legal ،yst Elie Honig,\xa0denounced\xa0Smith’s filing\xa0as “an unprincipled, norm-breaking practice.” He added that “Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at T،p’s elect، prospects.”

Others, as expected, applauded the filing as not just well-directed but well-timed. Smith was making his closing election argument to voters because he knows that the 2024 election will be the largest jury verdict in history.

If voters reelect T،p, then neither Chutkin nor Smith will likely see a jury in the case. This is why they must convict T،p now in the public eye, or else admit to an effective acquittal by plebiscite.

Their timing could well backfire. The weaponization of the legal system is central to this election, including the role of the Justice Department in pu،ng the debunked Russia-collusion allegations from the 2016 race. For many, the content of Smith’s filing is not nearly as important as the time stamp over the case caption. Titled a “Motion for Immunity Determination,” it seems more like a “Motion for an Election Determination.”

Smith’s raw political calculation s،uld be troubling for anyone w، values the rule of law. None of this excuses anything in these allegations a،nst T،p. But the most disturbing part of Smith’s October Surprise was that it was not in the least bit surprising.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Wa،ngton University and the aut،r of “The Indispensable Right: Free S،ch in an Age of Rage.”