Special counsel Jack Smith, who is overseeing the case against former President Donald Trump regarding his attempts to overturn the 2020 presidential election and his involvement in the January 6, 2021, attack on the U.S. Capitol, filed a legal briefing on Wednesday that seems to suggest that current or former members of Congress are ready to testify against the ex-president.
Smith’s filing, submitted to the D.C. District Court while a separate appeals process plays out regarding Trump’s claims of presidential immunity, states from the onset that Trump “has attempted to inject into this case partisan political attacks and irrelevant and prejudicial issues that have no place in a jury trial.” The arguments that Trump and his lawyers intend to use in the case, many of which do not relate to its contents — including unfounded claims that the case is a “witch hunt” or a conspiracy against him — could taint a potential jury’s views about the case altogether, making it difficult for them to render a fair ruling.
“Although the Court can recognize these efforts for what they are and disregard them, the jury — if subjected to them — may not,” Smith warns in the legal brief. “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.”
Smith calls for “improper evidence” from Trump’s lawyers or Trump himself to “be excluded” from the trial, citing long-recognized rules on decorum that mandate the exclusion of “evidence that is irrelevant.”
Joyce Vance, former U.S. Attorney and current professor of law at the University of Alabama, described Smith’s effort as a means to stop Trump from employing “jury nullification” in the case — a legal strategy that is sometimes used to persuade jurors that a person should be deemed innocent because a law is unfair, rather than because they are innocent of what they are accused of.
“That seems to be a key part of Donald Trump’s strategy, and Jack Smith calls it out in his motion, asking the court to prevent Trump from offering evidence that isn’t relevant to the charges against him, but that is designed to sway the jury to acquit for impermissible reasons,” Vance wrote on her Substack.
Smith’s filing also suggests that he has lined up a notable roster of witnesses to testify against Trump, potentially including members of Congress. Smith asks the court to allow these witnesses to retain certain privileges that would prevent Trump and his lawyers from asking them questions during cross-examination that are irrelevant to the case.
“The Government anticipates calling witnesses with knowledge of information protected by certain privileges, including the attorney-client privilege and the Speech or Debate privilege. If questioned about such information, those witnesses reasonably could assert the privilege that attaches,” Smith writes.
The Speech or Debate privilege refers to a provision found in Article 1 Section 6 of the U.S. Constitution that grants congressional lawmakers the right to not be held accountable for speech in relation to their duties as lawmakers, save for speech that could be part of an illegal activity. Although he doesn’t say it explicitly, it’s clear that Smith is referring to current or former members of Congress, as the right only applies to them, or to current or former vice presidents (such as Mike Pence, Trump’s former vice president), as they technically serve as President of the Senate.
Including the attorney-client privilege in this portion of the filing could indicate that certain lawyers — likely including Trump’s former White House counsel or personal attorneys — also want to testify in the case against Trump.
The reference to both privileges in the filing is bad news for the former president, MSNBC legal analyst Lisa Rubin wrote on X, the site formerly known as Twitter.
“Put another way, the government is making clear they have testimony from Trump lawyers and/or members of Congress. Gulp,” Rubin wrote.
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