Report of Special Counsel Jack Smith, Volume One: The Election Case
Post-Indictment Procedures
Post-Indictment Procedures
¶The two components of the Department's election year sensitivities policy play out differently in the context of post-indictment litigation. First, the bedrock principle that prosecutors may not take any action for the purpose of affecting an election or providing an advantage or disadvantage to any candidate or party applies fully during post-indictment litigation. On this score, the Office did not take a single action at any time for any such purpose;
101¶rather, the Office's m1ss10n was at all times to uphold the law and carefully follow the requirements of the criminal justice process.
¶Unlike the purpose-focused component of Department policy, the component that focuses on the Department's reputation for impartiality stands on a different footing with respect to pre indictment and post-indictment activity. This component of the policy applies fully to the timing of actions by prosecutors prior to indictment-bringing charges, taking overt investigative steps, and making public statements. Justice Manual § 9-85.500. For such actions, prosecutors must take election year sensitivities into account, and they are required to consult with PIN. Id. However, once the case is charged, this component of the policy does not limit the ability to litigate according to the schedule set down by the court and does not require consultation with PIN for such litigation. Whether it is during an election year or any other time, the duty of prosecutors after indictment is to litigate their cases fully and zealously, consistent with the Constitution, United States Code, Federal Rules of Criminal Procedure, rules of professional responsibility, and dictates of the calendar set forth by the court. See CNN This J\lforning, Garland Comments on Trump Case, CNN.COM - TRANSCRIPTS (Jan. 19, 2024), https://transcripts.cnn.com/show/ctmo/date/2024-01-19/segment/02 [https://perma.cc/HD2R- 6U8Y] (the "[p ]rosecutor has urged speedy trials, with which I agree. And it's now in the hands of the judicial system, not in our hands."). Once a case is charged, no policy of the Department limits the ability of prosecutors to litigate effectively on the schedule set by the court, and that is what the Office did.
¶Consistent with the Department's policy, after indictment, the Office litigated the Election Case according to the schedules set down by the district court, the D.C. Circuit, and the
102¶Supreme Court.256 The Office did the same in the Classified Documents Case in the Southern District of Florida, litigating the case according to the calendar set by the court. Trial had been set for May 20, 2024, but in late February, the court ordered the parties to submit proposals for a new schedule and held a conference to discuss them, including proposals fornew trial dates. See United States v. Trump, No. 23-cr-80101, ECF No. 338 (S.D. Fla. Feb. 27, 2024); Trump, No. 23-cr-80 l OI, ECF No. 369 (S.D. Fla. Mar. l, 2024). Before responding to the court, the Office confinned with PIN its own understanding that the election year sensitivities policy did not apply to post-indictment litigation or require an election year sensitivities consultation before requesting a new trial date. The Office then proposed a trial date of July 8, 2024, while Mr. Trump proposed August 12, 2024. But the court never set a new trial date. See id., ECF Nos. 356 & 357 (S.D. Fla. Feb. 29, 2024). PIN later advised the Office that prosecutors who request a trial date closer in time to an election than the July date that the Office proposed could be required to consult with PIN. In any event, the Office consulted regularly with PIN, and PIN agrees that the Office complied fully with the election year sensitivities policy in both of its cases. Given the gravity of the issues presented by the charges, the Office sought to move the case forward expeditiously for two central reasons unrelated to the election. First, the Speedy Trial Act mandates expeditious resolution of criminal cases, and it does so not only for the benefit of the accused, but in the best interest of the public. See Zedner v. United States, 547 U.S. 489, 501 (2006) ("[T]he [Speedy Trial] Act was designed with the public interest firmly in mind."); Strunk v. United States, 412 U.S. 434, 439 n.2 (1973) ("The public interest in a broad sense, as well as the constitutional guarantee, commands prompt disposition of criminal charges."); Cobbledick v. United States, 309 U.S. 323, 325 (1940) ("[E]ncouragement of delay is fatal to the vindication of the criminal law."). Second, those fundamental interests were heightened in this case, which raised matters of utmost gravity, urgency, and national concern, charging the former President with conspiring to thwart the peaceful transfer of power through lies that undermined the democratic process and ultimately fueled a violent attack on the United States Capitol. These criminal charges warranted prompt and fair disposition, and that is what the Office sought to achieve.
¶Both during the investigation and after the case was charged, however, Mr. Trump sought to delay the proceedings, taking the position that when the judicial process conflicted with his election campaign, the courts should always yield. See, e.g., ECF No. 30 at 11 (proposing April
103¶2026 trial date, emphasizing that "[n]o major party presidential candidate has ever been charged while in the middle of a campaign"); ECF No. 103 at 20 (Mr. Trump's counsel arguing, "The easiest solution to all of this is an obvious one.... and that is to adjourn the case after the presidential election. That's the solution."); ECF No. 242 at 7-8 (asking court to reconsider scheduling order, emphasizing that "President Trump is the leading candidate in the Presidential election, which is just weeks away").
¶The courts did not agree. They consistently rejected Mr. Trump's efforts to delay or stop the proceedings. The comis' words and actions throughout the litigation reflected their fundamental commitment to the operation of the judicial process, notwithstanding the election campaign. See, e.g., ECF No. 38 at 53 ("the public has a right to a prompt and efficient resolution of this matter"); ECF No. 29 at 41 ("the fact that the defendant is engaged in a political campaign is not going to allow him any greater or lesser latitude than any defendant in a criminal case"); id. at 15 ("And so what the defendant is currently doing-you know, the fact that he's running a political campaign currently has to yield to the orderly administration of justice."); id. at 19 ("I cannot, and I will not, factor into my decisions the effect it's going to have on a political campaign for either side."); United States v. Trump,88 See ECF No. 252 at 67 & n.363; SCO-00014442 at 38-39 (Pence, So Help Me God pp. 450-451); SCO-00007167 at 52-53; SCO-00016118 at 75-76. F.4th 990, 1018 (D.C. Cir. 2023) ("Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process."); id. at 1016 ("But there is another fundamental constitutional interest at stake here. The existence of a political campaign or political speech does not alter the court's historical commitment or obligation to ensure the fair administration of justice in criminal cases. A trial participant's engagement in political speech cannot degrade or diminish that essential judicial function."); Trump, No. 23-3228, Per Curiam Order (D.C. Cir. Dec. 13, 2023) (expediting briefing and oral argument); Trump, No. 23-3228, Judgment (D.C. Cir. Feb. 6, 2024) (accelerating the schedule for Mr. Trump to seek any further review).
104¶The Office also sought to move the Election Case forward expeditiously in the Supreme Court based upon the public interest in a prompt resolution of the case and the precedent set by the Watergate Special Prosecutor in United States v. Nixon, 418 U.S. 683 (1974) (Nixon), where the Court "granted both the United States' petition for certiorari before judgment (No. 73-1766), and also the President's cross-petition for certiorari before judgment (No. 73-1834), because of the public importance of the issues presented and the need for their prompt resolution ...." Id. at 686-687 (citations omitted). The Office filed a petition for certiorari before judgment, which would have moved the Election Case directly to the Supreme Court from the district court, and argued that the Court should follow the Nixon model. The Supreme Court did not grant the Office's petition for certiorari before judgment. However, like the D.C. Circuit, the Supreme Court ultimately expedited its consideration of the case, further confirming the Office's emphasis on the strong public interest in a prompt resolution.257 After the D.C. Circuit issued its opinion affirming the district court, Mr. Trump filed a motion in the Supreme Court to stay the Circuit's issuance of its mandate until he could file, and the Supreme Court could resolve, a petition for certiorari that he intended to file in the Supreme Court. See Trump v. United States, No. 23A 745, Application for a Stay of the D.C. Circuit's Mandate Pending the Filing of a Petition for Writ of Certiorari (U.S. Feb. 12, 2024). In response to that motion, the Office again pointed to the significant public interest in a prompt resolution of the case, and argued that the Supreme Court should either deny the stay or, as an alternative manner of moving the case promptly, treat Mr. Trump's motion as a petition for certiorari, grant the petition, and set the case for expedited briefing and argument. See Trump, No. 23A 745, Resp. in Opp'n to Application for a Stay of the Mandate of the United States Court of Appeals for the D.C. Circuit (U.S. Feb. 14, 2024). The Supreme Court adopted the Office's alternative proposal and set an argument and briefing schedule to complete the litigation in the October Term, which ended on July 1, 2024. See Trump, No. 23-939, Order Granting Petition (U.S. Feb. 28, 2024). Briefing was completed by April 15, 2024, the Supreme Court held oral argument on April 25, 2024, and the Supreme Court issued its immunity opinion remanding for further proceedings on July I, 2024. See Trump, 603 U.S. at 642.
¶Following the Supreme Court's immunity decision, the Office again proceeded in a manner that was fully consistent with the letter and spirit of the Department's election year sensitivities policy: litigating the case according to the schedule established by the district court, taking action based upon the law and the best interests of the case, and consulting with PIN. Upon receiving the decision, the Office immediately began a multi-faceted process to determine the best way forward, including (1) a thorough evaluation of the opinion itself; (2) an exhaustive and detailed review of the evidence and the allegations in the original indictment to determine whether there was sufficient non-immune evidence to support the charges in light of the opinion; (3) once the Office determined that there was sufficient non-immunized evidence, an evaluation of whether to litigate the case based on the existing grand jury record and indictment or instead, seek a superseding indictment that would be presented to a grand jury that had not heard any immunized evidence; and (4) given the timing, evaluate whether all of the necessary steps could be undertaken consistent with the election year sensitivities policy. The Office determined that that there was sufficient non-immunized evidence to support the charges and that the best course of action for the case was to obtain a superseding indictment that implemented the Supreme Court's holding in Trump, and present that new indictment to a grand jury that had not heard evidence of immunized conduct. See ECF No. 228 (Notice of Superseding Indictment). Before doing so, the Office consulted with PIN for two purposes: (1) to obtain PIN's concurrence regarding the proposed election fraud charges under 18 U.S.C. §§ 241 and 371, as required by Justice Manual § 9-85.300; and (2) given the timing of the superseding indictment, to consult with PIN regarding election year sensitivities, pursuant to Justice Manual § 9-85.500 and the Attorney General's Election Year Sensitivities Memorandum. PIN concurred with the return of the superseding indictment, which was returned by the grand jury on August 27, 2024.
105¶Following the superseding indictment, and consistent with the district court's instructions, on August 30, 2024, the parties submitted their positions regarding the schedule for pretrial proceedings. ECF No. 229. The Office proposed that it file an opening brief regarding immunity in which it would provide detailed information without which the court could not undertake the factbound analysis that was required by the Supreme Court's remand. The Office argued that its filing would include the information that the defense would need to address and that the district court would need to make its immunity determinations-regarding both the allegations in the superseding indictment and the evidence that the Office would introduce at trial-in a manner that would avoid the prospect of multiple interlocutory appeals. Id. at 2-3. Were the defense to file first on remand, it would leave a large gap in the analysis that the district court was required to undertake because only the Office could identify all of the evidence upon which the charges were based and upon which it would rely at trial. See ECF No. 232 at 12-15 (Transcript of Hearing). The Office did not propose a particular date for filing its immunity brief or a schedule for conducting the immunity litigation. It left those matters to the court's discretion. Mr. Trump proposed that the immunity litigation should not begin until December 2024.
106¶The district court issued an order setting a new schedule for pretrial litigation and directing the Office to file its opening immunity brief on September 26, 2024. See ECF No. 233. Prior to filing its immunity brief, the Office again confirmed with PIN that the election year sensitivities policy did not apply to conducting such post-indictment litigation according to the court's schedule and that the Justice Manual did not require consultation with PIN regarding such litigation. And after the Office filed its immunity brief and Mr. Trump attempted to delay its public disclosure, the district court again rejected his attempt to conflate the election and the criminal justice process:
107In addition to the assertions discussed above, Defendant's oppos1t10n brief repeatedly accuses the Government of bad-faith partisan bias. See Def.'s Opp'n
at 2, 5-6. These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand. See Oversized Brief Order at 2-3 (identifying two recent instances of this pattern). Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case.
¶ECF No. 251 at 7.258 On October 17, 2024, Mr. Trump filed a motion, ECF No. 264, to delay public disclosure of the Office's appendix to its immunity brief until after Mr. Trump had filed his own appendix on November 14, nine days after the 2024 presidential election, such that both appendices would be released publicly simultaneously. Because Mr. Trump filed his motion before obtaining the Office's position, the Office emailed the district court's chambers, copying defense counsel, to inform the court that the Office did not object to that procedure.
¶Throughout its work, the Office was focused entirely on its mandate to uphold the law, and nothing more. The career prosecutors in the Office conducted its investigation and prosecution in a manner that complied fully with the Department's policies regarding election year sensitivities.
INVESTIGATIVE CHALLENGES AND LITIGATION ISSUES
¶In a corruption or conspiracy investigation, it is not unusual for a subject or target of the investigation to continue to wield significant influence over, or command strong loyalty from, potential witnesses, often complicating the ability of prosecutors to obtain evidence. That dynamic was amplified in this case given Mr. Trump's political and financial status, and the prospect of his future election to the presidency. As described below, one company resisted a lawful court order issued during the Office's investigation, and important witnesses made the choice to assert privileges against providing evidence based on their own official positions in the government. In addition, after his indictment, Mr. Trump used his considerable social media presence to make extrajudicial comments-sometimes of a threatening nature-about the case, and the Office was forced to pursue litigation to preserve the integrity of the proceeding and prevent witness intimidation. Mr. Trump also was able to raise claims of executive privilege and presidential immunity. This section discusses each of those challenges and how the Office addressed them.
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