Smith's Report Violates The Presumption of Innocence

¶The presumption of innocence is "the undoubted law, axiomatic and elementary." Coffin v. United States,¹⁵⁶¹⁵⁶ SCO-04976407 at 03:29:00-03:29:34 (Video of Georgia Senate Judiciary Subcommittee Hearing 12/30/2020). U.S. 432, 453 (1895). It is "vital and fundamental" to our Constitutional system, id. at 460, and "its enforcement lies at the foundation of the administration of our criminal law," id. at 453; see also Cool v. United States, 409 U.S. 100,¹⁰⁴¹⁰⁴ See ECF No. 252 at 77-78 & nn.432-443; SCO-02244118 at 5, 6, 9, 22 (Remarks by Mr. Trump at Save America Rally 01/06/2021). (1972) (holding violation of defendant' s "constitutionally rooted presumption of innocence" required reversal).

¶"The presumption serves as a reminder to the jury that the prosecution has the burden of proving every element of the offense beyond a reasonable doubt," United States v. Starks,³⁴³⁴ See ECF No. 252 at 17 & n.66; SCO-12733339 at 14 (Int. Rep.). F.4th 1142, 1158 (10th Cir. 2022), and thus, may be "extinguished only upon the jury 's determination that guilt has been established beyond a reasonable doubt," Mahorney v. Wallman, 917 F.2d 469, 471 n.2 (10th Cir. 1990) (emphasis in original) (collecting cases).

¶Consistent with these bedrock principles, the Justice Manual prohibits prosecutors from publicly declaring a defendant's guilt prior to a jury verdict, or otherwise disseminating statements inconsistent with the presumption of innocence. Justice Manual§§ 1.7.500; 1-7.600;²⁸²⁸ See ECF No. 252 at 20-21 & nn.88-91; SCO-00455536, SCO-12987478 (Donald J. Trump Retweet 12/06/2020); SCO-00455538, SCO-12858634 (Donald J. Trump Tweet 12/06/2020); SCO-00767550 at 43-49 (HSC Tr.); SCO-11540788 at 51-53 (Int. Tr.). C.F.R. § 600.7(a) ("A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice."). Rather, prosecutors must limit their statements to " [t]he substance of the charge, as contained in the complaint, indictment, information, or other public documents" and any "release issued before a finding of guilt should state that the charge is merely an accusation, and the defendant is presumed innocent until proven guilty." Justice Manual § 1.7.500. Moreover, "DOJ personnel should refrain from disclosing" inter alia, " [a]ny opinion as to [a] defendant' s guilt" or any other "[o]bservations about a defendant' s or party' s character" "except as appropriate in the proceeding or in an announcement after a finding ofguilt." Justice Manual § 1-7.610 (emphasis added).

¶These restrictions ensure that the Department's statements do not "prejudice the rights of a defendant; or unfairly damage the reputation of a person." Justice Manual § 1-7.100; see also 32 C.F.R. § 776.47 ("Except for statements that are necessary to inform the public of the nature and extent of the trial counsel' s actions and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."); D.C. Bar Rule 3.8 (same).

¶The Draft Report violates every one of these core requirements. Despite Smith' s decision to dismiss his cases against President Trump, and his complete failure to obtain a "jury 's determination that guilt has been established beyond a reasonable doubt," Afahorney, 917 F.2d at 471 n.2 (emphasis in original), his Draft Report repeatedly, and falsely , claims that President Trump, Carlos De Oliveria, Waltine Nauta, and others have committed crimes and otherwise engaged in purported "criminal conduct." For example, Volume I of the Draft Report falsely asserts, without any jury determination, that President Trump and others "engaged in an unprecedented criminal effort," was "the head of the criminal conspiracies," and harbored a "criminal design." Draft Report, Vol. I at 2, 68, 69. These false accusations of criminality, which Smith again utterly failed to prove in Court, repeat throughout Volume I. See, e.g. , id. at 3, 52, 60, 64, 67, 88, 108. Likewise, Volume II asserts, without any supporting verdict, "that Mr. Trump violated multiple federal criminal laws," and that he and others engaged in "criminal conduct." Vol. II at 60,⁸⁸⁸⁸ 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. ; see also, e.g., id. at 89, 121. Moreover, the Draft Report makes these allegations despite

Blanche Law PLLC 99 Wall Street, Suite 4460 I New York, NY 10005 (212) 716-1250 I www .BlancheLaw.com

¶January 6, 2025 Page 7 the ongoing prosecutions of DeOliveira and Nauta, which would cause gravely unconstitutional prejudice if released.

¶Neither the Constitution nor applicable regulations or ethical rules allow Smith to make public, extrajudicial claims that purport to reflect conclusive determinations of guilt backed by the imprimatur of DOJ. It is the role of the jury, not the Special Counsel, to weigh the facts and determine guilt. Other Special Counsels have recognized this foundational fact. For example, Special Counsel Hur carefully cabined his observations to what some "jurors could," "might," "may well," or, at most, "would likely" conclude. See, e.g., Hur Report at 4, 5, 9, 10,204, 206-211, 214,216,218,220,233,235, 240-42, 246- 47. At all points, Hur's focus was on whether 'jurors assessing Mr. Biden's guilt and intent w[ould] be persuaded," id. at 241, and not on the Special Counsel's unilateral views or opinions regarding Biden's obvious guilt.

¶Likewise, Special Counsel Mueller expressly declined to "apply an approach" to his report "that could potentially result in a judgment that the President committed crimes," where, as here, "no charges c[ould] be brought." Mueller Report, Vol. II at 2. In Special Counsel Mueller's view, "[f]aimess concerns counseled against" any kind of public accusation because:

[t]he ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that sun-ound a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

¶Id. Moreover, Special Counsel Mueller warned that a public disclosure of a prosecutor's unilateral judgment would only heighten these dangers. Id. ("[T]he possibility of the report's public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining 'that the person's conduct constitutes a federal offense.' Justice Manual§ 9-27.220."). For these reasons, Special Counsel Mueller's report "did not draw ultimate conclusions about the President's conduct," id. at 182, but "[i]nstead for each of the relevant actions investigated, ... set[] out evidence on both sides of the question...." Ltr. from Attorney General William Ban- at 3 (Mar. 24, 2019).

¶To the extent Special Counsel Smith possesses any authority to draft a report (and he does not) he should have applied the same principles as Special Counsels Hur and Mueller, which the Constitution, the Justice Manual, and applicable regulations and ethical rules all require. That is-providing a dispassionate description of the relevant facts, free of any gratuitous commentary regarding President Trump's conduct, let alone direct accusations of guilt. Smith failed to do so. Instead, he chose to construct the Draft Report as a partisan weapon, designed to "unfairly damage the reputation" of President Trump, Justice Manual § 1-7.100, in a manner calculated to "heighten[] public condemnation,"³²³² See ECF No. 252 at 32-33 & nn.160-161; SCO-00829361 at 16-18 (HSC Tr.). C.F.R. § 776.47, while providing "no ... adversarial opportunity for public name-clearing before an impartial adjudicator," Mueller Report, Vol. II at 2. Accordingly, the Department should not, under any circumstances, permit Smith to complete or submit the Draft Report in this form or otherwise disseminate it to the public.

Blanche Law PLLC 99 Wall Street, Suite 4460 New York, NY 10005 I

(212) 716-1250 www.BlancheLaw.com I

¶January 6, 2025 Page 8