Jack Smith has taken an iron-fist-in-a-kid-glove approach, sidestepping secondary issues that could divert attention from the weight of the evidence he has assembled in his case against the former president.
Jonathan Goodman, the magistrate judge assigned to handle Donald J. Trump’s arraignment, did something of a double take during the proceeding on Tuesday, when the Justice Department offered the former president a bond deal that was not merely lenient but imposed virtually no restrictions on him at all.
Jack Smith, the special counsel overseeing the prosecution for the department, opted not to request conditions routinely imposed on other defendants seeking to be released from custody, like cash bail, limits on domestic travel or turning in his passport.
But Judge Goodman, tasked with hashing out a bond agreement during a one-day cameo appearance on the case, was not entirely on board. He suggested that Mr. Trump be compelled to “avoid all contact with co-defendants, victims and witnesses except through counsel.” Mr. Smith’s deputy, David Harbach, joined Mr. Trump’s lawyers in opposing that idea — but the judge imposed a version of it anyway.
The first courtroom skirmish in United States v. Donald J. Trump underscored the legal perils the former president faces and his determination to make the indictment a centerpiece of a 2024 presidential campaign fueled by grievance and retribution.
It also provided telling insights into the fist-inside-a-kid-glove approach that Mr. Smith and his team employed: an aggressive fast-track approach to prosecution coupled with a conspicuously respectful posture toward the defendant.
Mr. Smith’s decision not to demand any conditions at the arraignment, people familiar with the situation said, reflected a belief that prosecutors should avoid impairing Mr. Trump’s ability to campaign. He is also seeking to dodge potentially distracting elements to a case focused on concrete evidence about the former president’s handling of classified documents and efforts to obstruct government efforts to reclaim them.
His approach also seems to be a nod to the political sensitivities created by years of Republican protests — and misinformation — about prior investigations into Mr. Trump by the Justice Department and the F.B.I.
“The prosecution of a former president and the current political rival of President Biden is obviously hugely politically fraught and comes against the background of prior Justice Department actions against Trump marked by error and excess,” said Jack Goldsmith, a Harvard Law professor and former assistant attorney general.
“Trump and his allies will do everything they can to demonize the prosecution as unfair,” he added. “It makes perfect sense that Smith, who has the law clearly on his side, would do everything he can to avoid raising the temperature on the matter further.”
There are other indications that Mr. Smith, who sat a few feet behind Mr. Harbach in the courtroom on Tuesday, intently following the back-and-forth with the judge, seems intent on avoiding unnecessary confrontation.
Conspicuously absent from the indictment was a potential charge that had been listed in the affidavit the Justice Department filed to obtain a search warrant for Mar-a-Lago last summer: Section 2071 of the federal criminal code, which prohibits the concealment and mishandling of sensitive government documents.
It was the only crime on the sheet that might have directly affected Mr. Trump’s 2024 presidential bid, requiring that anyone convicted of it “shall forfeit his office and be disqualified from holding any office under the United States.”
Many legal scholars believe that the provision is unconstitutional and would have ultimately been struck down if it were imposed on Mr. Trump. But Mr. Smith’s team sidestepped the issue altogether, leaving it out of their 37-count indictment on a section of the Espionage Act that imposes a prison term but no restrictions on holding office.
“I think it’s a very savvy move not bringing that charge,” said John P. Fishwick Jr., who was the U.S. attorney for the Western District of Virginia from 2015 to 2017. “It makes this much less about politics — this is about the evidence, not about blocking him from office.”
The special counsel has already gone where no prosecutor has before, indicting a former president on charges that he illegally retained national security documents and schemed with his personal aide to obstruct investigators. And he has not been shy about ensuring that some of the most vivid evidence (including photographs of boxes stacked in a bathroom at Mar-a-Lago and of top-secret documents spilled onto the floor of a storage room) be made public.
But Mr. Smith’s team has also taken pains to spare the former president unnecessary embarrassment or inconvenience, as evidenced by their deferential attitude at the arraignment toward Mr. Trump and his co-defendant, Walt Nauta.
The U.S. Marshals Service, a branch of the Justice Department responsible for law enforcement at federal courts, adopted a similar tack. They booked Mr. Trump quickly and quietly in an office in the courthouse, registering his fingerprints electronically but eschewing a mug shot “because there are plenty of pictures of him” to choose from, according to a federal law enforcement official who briefed reporters afterward.
Mr. Smith’s decision to avoid the placement of strict preconditions on Mr. Trump’s release appears to be part of a larger strategy of avoiding secondary fights that could complicate efforts to obtain a conviction, according to current and former Justice Department officials.
By not pressing to limit contact between Mr. Trump and potential witnesses who are also his aides and other employees or advisers and lawyers, the prosecutors were seeking to minimize the potential for any violations of those strictures that might disrupt their efforts to keep the trial focused on the core charges involving national security secrets and obstruction.
“I imagine this is why they did not insist on travel restrictions or even a gag order,” said Barbara L. McQuade, who was the U.S. attorney for the Eastern District of Michigan from 2010 to 2017.
There is also a sense among some close to the case that much of the evidence needed to convict the defendants — in the form of text messages, photographs, camera footage, sworn testimony and the detailed notes of M. Evan Corcoran, a Trump lawyer — is already in place, making a confrontation over witnesses a costly distraction with limited benefits.
“No-contact orders, like the one the judge insisted on, are routine — even in cases where you don’t have a defendant, like Trump, who has tried to influence witnesses,” said Mary McCord, a former top official in the Justice Department’s national security division. “But in this case, Jack Smith has a lot of what he needs already, so he seems to be avoiding a fight that could slow the whole the process down.”
Mr. Trump’s lawyer Todd Blanche had a different reason for objecting to the tougher terms: It was “unworkable” for the court to place preconditions on his client’s casual interactions with potential witnesses on his payroll or in his Secret Service protective detail, he told the court.
But some critics, including Andrew Weissmann, who was the lead prosecutor in Robert S. Mueller III’s investigation of the Trump campaign’s connections to Russia, see all this as a double standard that unfairly shields Mr. Trump from the conditions placed on others accused of serious offenses.
Judge Goodman — a former newspaper reporter with a wry, conversational courtroom style — did not object to the department’s desire to limit the restrictions on Mr. Trump, other than he appear for his court hearings and commit no crimes. But he seemed puzzled why Mr. Smith’s team would not, as a bare minimum, insist that a defendant who has been accused repeatedly of pressuring witnesses be given no constraints at all.
“Despite the parties’ recommendations to me, I am also going to be imposing some additional special conditions,” the judge said. “Former President Trump will avoid all contact with witnesses and victims except through counsel” — once prosecutors assembled a list of witnesses.
Mr. Harbach said his team would comply, then joked that the “elephant in the room” was that no such list existed yet.
Source: Elections - nytimes.com
