Is Jack Smith Afraid To Prove His Case?
What If Donald Trump's Claims Of Election Fraud Are True?
Fresh off his recent rebuke by the Supreme Court, Special Counsel Jack Smith is filing yet another motion with the courts seeking to handcuff and restrict Donald Trump’s defenses at trial regarding the charges Smith has brought against him.
Special counsel Jack Smith asked a Washington, DC, federal judge Wednesday to rule out former President Donald Trump’s attempts “to inject politics” into his Jan. 6 case, arguing in a court filing it will “ensure that the jury remains focused on its fact-finding duty and applies the law as instructed by the Court.”
Smith’s concern about Trump “injecting politics” has to stand as a moment of supremely unaware irony, given that the prosecution of a former President for acts performed while President is inherently political. Smith injected politics into the case the moment he sought the indictments.
Yet when we look closely at Smith’s latest motion, our attention is once again brought to a single word that appears throughout the pleading: “false”.
The core of Smith’s case was that Trump made “knowingly false” claims about the 2020 election, and thus attempted to defraud the United States and obstruct the certification of the actual election itself.
But what if Trump’s claims are true? What if Trump’s claims of ballot fraud and election corruption are on the money? How could Donald Trump be even attempting to defraud anyone simply by telling the truth?
The ultimate irony of Smith’s latest filing is that he arguably is asking the court to relieve him of the burden of having to actually prove a key element of his case.
The particular motion Jack Smith has filed with the trial court is a “motion in limine”1, a pretrial motion which generally seeks to preclude and exclude arguments and evidences which are generally irrelevant to the issues of fact at trial, and are frequently inflammatory and prejudicial.
A "motion in limine" is a pretrial motion that seeks the exclusion of specific evidence or arguments from being presented during a trial. A motion in limine is decided by the judge outside of the presence of the jury. The purpose of a motion in limine is to address potentially prejudicial, irrelevant, or inadmissible information that could unduly influence a jury or hinder the fair administration of justice.
Specifically, Jack Smith is seeking a court order precluding Donald Trump from advancing certain arguments and lines of defense at trial:
Through public statements, filings, and argument in hearings before the Court, the defense has attempted to inject into this case partisan political attacks and irrelevant and prejudicial issues that have no place in a jury trial. Although the Court can recognize these efforts for what they are and disregard them, the jury—if subjected to them—may not. The Court should not permit the defendant to turn the courtroom into a forum in which he propagates irrelevant disinformation, and should reject his attempt to inject politics into this proceeding. To ensure that the jury remains focused on its fact-finding duty and applies the law as instructed by the Court, the defendant’s improper evidence and argument should be excluded.
At first glance, Smith’s motion appears to address valid concerns—the potential of a criminal defendant to use arguments and evidences which are wholly irrelevant to the charges at hand in order to confuse the jury and thus secure an acquittal. Smith even appears to have case law on his side, since the role of the trial judge, well defined in case law2, is in large measure to prevent such cynical exploitation of the legal system:
In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the rial for the purpose of assuring its proper conduct and of determining questions of law.
As a matter of simple practicality, we want judges who are going to focus a trial on the actual issues at trial—in this instance, the specific criminal charges of which Donald Trump stands accused.
However, Smith is once again highlighting how his entire case hinges on whether Donald Trump’s claims regarding the 2020 election are not merely false, but “knowingly false.”
For Smith, that could be a problem.
To apprehend where I see Smith’s case running into a serious problem, we must first examine his obsession with the word “false”. Throughout both the initial indictment and this motion in limine he uses various forms of the word frequently.
The dictionary definition of “false” is, of course, perfectly clear: “not true.”
However, the term takes on a far more intentional and therefore sinister aspect when used with respect to legal matters.
Untrue; erroneous; deceitful; contrived or calculated to deceive and injure. Unlawful. In law, this word means something more than untrue; it means something designedly untrue and deceitful, and implies an intention to perpetrate some treachery or fraud.
Falsity—particularly intentional falsehood—is an essential element of any criminal act of fraud3.
To defraud broadly means trick or deceive someone at the expense of another for personal gain. In the legal sense, to defraud is to commit fraud that leads to civil or criminal liability.
Falsity is thus at the center of the first count of Smith’s indictment against Trump: conspiracy to defraud the United States4.
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
Specifically, Jack Smith is alleging that Donald Trump engaged in a conspiracy to defraud the United States by disrupting the “legitimate” Presidential election of 2020.
It is perhaps an important sidenote here to observe that in the Chiafolo5 decision, the Supreme Court reaffirmed a Constitutional point of law that should be self-evident: Presidential elections are conducted by the several states as corporate political entities. The federal government’s role in Presidential elections is limited to certifying the results transmitted by the several states.
Smith acknowledges this with his references to the Electoral Count Act of 1887. However, in his interpretation of this statute, he argues that any attempt to disrupt the receiving of Electoral College votes by the Congress on January 6, 2021, constituted a fraud.
As the statutes make crystal clear, fraud against the United States is unambiguously a crime. On this point there is no doubt.
HOWEVER
For Trump’s actions to be fraudulent they have to first be “false”, using the definitions provided above.
This leads us to the first question that Smith has to answer at trial: were Trump’s actions “false”, and were they predicated on a fundamental dishonesty by Donald Trump and his associates?
Recall the counterfactual I posed when I first discussed Smith’s indictment of Donald Trump.
Yet let us briefly consider the counterfactual: If Trump did in fact win in those disputed states, assembling a slate of electors and having them cast Electoral College votes would have been exactly what should happen. They would have been required to meet on the appointed date—which Smith says they did—and they would have been asked to certify their votes—which Smith says they did. Those Electoral College votes would have been transmitted to the Congress—which Smith says they were.
If we look back to the text of the Electoral Count Act, we see that, structurally, Trump’s assemblage of “alternate” slates of electors is in keeping with the both the form and spirit of the statute.
If it should come to pass that Trump’s claims of ballot fraud in those states were correct, then the certification of the non-Trump slates of electors for those states arguably was invalid, which makes the certification of their receipt by the Congress and Vice President invalid.
In other words, Donald Trump’s actions could not possibly be fraudulent if he is correct that these states saw rampant ballot fraud sufficient to alter the outcome of the election. Rather, Donald Trump himself would be the victim of that fraud—and the real perpetrators of a “fraud against the United States” would be the organizers of the multi-state ballot fraud.
That makes the falsity of Trump’s claims a question of fact, not of law, and as such must be adjudicated by the jury and not by the judge.
Smith is further seeking to limit Trump’s ability to introduce evidence regarding his state of mind regarding the contested states.
Here again Smith runs into a problem of his own making: Once again he is acknowledging a point he conceded in his original indictment: Trump’s actions can only be criminal if he knew that his claims of ballot fraud and election corruption were false. We do not need to adjudicate that point at all, for Smith has already stipulated it in the indictment.
Thus Smith is purporting to be able to prove not just that Trump’s claims of ballot fraud are demonstrably false but also that Trump knew the claims were demonstrably false. If he is unable to prove that, by the terms laid out in his own indictment he cannot secure a conviction.
Yet Smith is wanting to bar Trump from introducing evidence pertaining to Trump’s own state of mind at trial? That almost reads as if Smith is hoping to preclude Trump from introducing any evidence with which to rebut whatever proofs Smith offers up to the court regarding Trump’s state of mind.
However, as this motion once again illustrates, Smith has to prove beyond a reasonable doubt that Donald Trump knew his claims of ballot fraud were false, that his efforts to submit alternate slates of electors were therefore fraudulent and deceptive, and that the intention of this fraud was to subvert the 2020 election and “steal” another four-year term of office.
Is this motion in limine a back-door effort by Smith to somewhat ease his burden of proof in this regard?
Curiously, as Smith acknowledges at the start of the pleading, the Federal rules of evidence already preclude irrelevant evidence from being admitted at trial. With or without this motion being granted by the Court, Donald Trump’s attorneys are already precluded by those rules from introducing irrelevant evidence and testimony at trial. Given that the evidences Smith is seeking to exclude arguably covers potentially relevant evidence, Smith and his prosecution team presumably could object to any effort by Trump’s attorneys to introduce irrelevant evidence at that time.
That being the case, what purpose does this motion serve?
How does it advance the cause of justice to restrict Donald Trump’s available lines of defense?
More crucially, why is Smith concerned about what evidences Trump might be planning to introduce in his defense? If Smith has a strong case against Donald Trump, there should be little cause for worry here. That Smith obviously is worried suggests that Smith’s case may not be nearly as strong as many are wont to believe.
Given Smith’s earlier motion to the court wherein he planned to introduce Trump tweets and statements regarding the elections of 2012 and 2016, are we seeing yet more indications that Smith’s case against Trump is perhaps fatally flawed and irreparably weak?
As a simple matter of both law and justice, if Donald Trump did attempt to pull a fast one in 2021 and persuade the Congress to overturn what was in fact the legitimate and factual outcome of the 2020 election, he should face criminal sanction. If it can be shown that he really is that much of a con artist, it is difficult to envision anyone voting for him to be city dog catcher, let alone President of the United States.
Yet with efforts on the one hand to expand the range of evidence available to his case while simultaneously exerting efforts on the other hand to limit the range of evidence available to Donald Trump’s defense, it is difficult to see how the real con artist here is anyone other than Jack Smith.
Jack Smith is the one apparently attempting a legal end run around Donald Trump’s rights to a fair trial. Jack Smith is the one seeking the court’s imprimatur on the 2020 election outcome, a final judicial declaration that Donald Trump really did lose and there was no ballot fraud.
Yet in seeking such a diktat from the bench, Jack Smith is ignoring the salient question at the center of his own case: What if Trump is right?
Wex Definitions Team, Legal Information Institute. Wex: motion in limine. Aug. 2023, https://www.law.cornell.edu/wex/motion_in_limine.
Quercia v. United States, 289 U.S. 466 (1933)
Wex Definitions Team, Legal Information Institute. Wex: Defraud. Oct. 2022, https://www.law.cornell.edu/wex/defraud.
You truly have an astoundingly good legal mind, Mr. Kust. Trump should employ you on his defense team.
I was just reading Malone’s Substack (‘Who is Robert Malone’). He makes similar points which concur with yours. Let’s hope many more intelligent minds are able to grasp the truth of your reasoning!
Thank you for making all this easier to understand and not scary.