Special Counsel Jack Smith has filed a motion to the DC Federal Circuit Court asking that former President Donald Trump be barred from using political speech related to the events of January 6 during his trial. The request seeks to limit what evidence Trump’s legal team will be permitted to present to the jury.
What does this mean for Donald Trump’s legal strategy, and is it a prosecutorial assault on his rights? We spoke with Liberty Nation Legal Affairs Editor, Scott D. Cosenza, to determine what the request means.
Mark Angelides: Scott, from a layman’s point of view, this looks like a massive imposition on Trump’s legal strategy. What’s the deal with this motion?
Scott D. Cosenza: That’s precisely what it is. Mr. Smith wishes to limit the damage Trump can inflict on the case against him by any available means. Keeping Trump’s testimony and evidence in narrow lanes, as defined by the prosecution, will go a long way toward Smith winning his case.
MA: Smith’s filing is titled “GOVERNMENT’S MOTION IN LIMINE” – what is a motion in limine?
SDC: Whether it’s a prosecutor, the defense counsel, or a witness – perhaps even the defendant – sometimes someone may ask a question or give testimony at a trial that is not admissible. Everyone who’s seen a Law & Order episode or any other trial scene has no doubt heard a lawyer raise an objection to a witness’s statement. They may say it’s prejudicial, hearsay, irrelevant, or any of the many reasons the judge should exclude a statement. Then, the judge rules and they move along.
A motion in limine is simply an advanced presentation of the same objection. In this instance, the moving party – Mr. Smith – is saying to the judge that the defense is likely to present or elicit evidence that is not admissible. So, the court should act now to prevent the evidence from ever being mentioned before the jury. You can’t put the toothpaste back in the tube; this type of motion recognizes that reality.
MA: Is it fair to say they are common then? What about this motion in particular – is it something you might expect?
SDC: These motions are a typical part of civil and criminal trials. Mr. Smith’s motion is quite broad, however, and if granted, it will completely cut off many avenues of defense for Trump, including and especially jury nullification.
MA: What is jury nullification, and how does it apply here?
SDC: Nullification is when the jury sets aside the law and declares the defendant not guilty regardless of the law. We can never forget the jury’s purpose: to keep government agents from throwing us in cages without the people’s permission. Sadly, the jury’s power has been sapped since the founding, and, in the case of grand juries, it is turned against the cause it was imposed to bolster. They still have vital powers, and each juror has sway due to the unanimous verdict requirement for finding a defendant guilty.
When marijuana laws were more draconian, for instance, DC juries were known for nullifying charges – the evidence be damned. For Trump, this could mean he argues the prosecution should be disregarded because it is incurably tainted by political motives. The popular perception is that any DC jury would relish the chance to convict Trump. Perhaps. Before his presidency, Donald Trump did very well with black urban audiences, and his defense, if allowed, could be successful in arguing he is the little guy battling a corrupt prosecution.
MA: Will Judge Chutkan, the Obama appointee, grant Smith’s motion?
SDC: It will almost certainly be granted in part and denied in part. Where those cuts are made will make all the difference, however. A trial judge is given significant latitude to decide what evidence may be included or excluded. If Chutkan makes pro-prosecution rulings because she genuinely believes that’s the right call or out of hatred for Trump, that will undoubtedly hurt his chances. Above all, Smith wants Trump’s trial to begin as early in the year as possible. Chutkan’s discretionary rulings all seem to have aided this goal.
Speaking of timing, Smith is using his time well. He cannot proceed to trial until the current appeal of the charges is dispensed with. By submitting these objections now, he is doing what he can to advance the case and meet his calendar needs.
MA: Smith’s petition involves evidence presented in court, not outside of court, like the gag order imposed in his New York trial. Do you think that if Trump tries to make his case to the public – and after all, why wouldn’t he – the judge might grant a similar gag order for communications outside of the courtroom?
SDC: Yes. Mr. Trump loves publicity, and if history is our guide, he will test the limits of what is permissible regarding out-of-court statements.
MA: Again, approaching this from a layman’s perspective, if you have to try to silence or limit what your opponent says to win your case, this seems to indicate that the prosecutor has a weak case. What’s your legal assessment?
SDC: I don’t necessarily agree that it signals a weak case. While it may be news for many, the notion that prosecutors want a fair game is preposterous for anyone familiar with our criminal justice system. Sadly, that part of our guarantee of liberty is weakly defended, and it shows. We only have ourselves to blame. Rarely do politicians win office by demanding a fairer deal for those accused of serious crimes. I suspect Mr. Smith is simply looking to leverage any possible rule or mechanism in the service of his singular focus, getting Donald Trump.