Photo Illustration: Intelligencer; Photos: Getty Images/Department of Justice

Jack Smith has failed in his attempt to bring Donald Trump to justice before the 2024 election. Instead, the special counsel changed the usual procedure to get one last chance, just weeks before voters go to the polls.

Smith has now dropped a 165-page motion in federal court challenging Trump’s immunity from prosecution. Judge Tanya Chutkan – who suddenly claims that she doesn’t care about the upcoming election, even though she had previously tried to expedite the case to reach it before the same election, which resulted in her being reversed and penalized by the Supreme Court – duly complied with Smith’s wishes, redacted I picked out a few obvious names (who could ever be “Governor of Arizona (redacted P-16)”?) and published the rest.

There are two headlines here. The immediate takeaway lies in the revelations contained in Smith’s outsized briefing. (He asked the judge for permission to file a brief that was 180 pages long, four times the normal maximum.) We now have damning new details about Trump’s attempt to pressure Vice President Mike Pence to swing the election his way , Trump’s phone use and Twitter usage over the course of the insurrection and his conversations with family members about efforts to challenge his election loss. The structure of the story is the same as we have known for a long time, but the new details give it depth and dimension.

The bigger, if less obvious, headline is that Smith has essentially given up all pretense; He will bend every rule, change every practice – as long as he can hurt Trump’s election prospects. At this point, there is simply no way to defend Smith’s behavior on any principled or institutional basis. “But we need to know this before we vote!” is a nice bumper sticker, but it is neither a reaction nor an apology for Smith’s unprincipled, norm-breaking actions. (This also overlooks the fact that the Justice Department bears responsibility for the fact that it took over two and a half years to even bring charges.)

Let’s go over the issues Smith made here.

Firstly, it is backwards. The way motions work – under federal rules and consistent with common sense – is that the prosecutor files an indictment; the defense makes motions (to dismiss charges, suppress evidence, or whatever); and then the public prosecutor responds to these requests. Makes sense, right? It has been used in our dishes for hundreds of years.

Not here. Not when an election is just around the corner and the chance to do something about it is dwindling. So Smith turned the established, completely uncontroversial rules of criminal procedure on their head and asked Judge Chutkan for permission to be the first to file a lawsuit – even if no actual defense motion was pending. Trump’s team appealed, and the judge acknowledged that Smith’s request to file first was “procedurally irregular” just moments before she ruled in Smith’s favor, as she did at virtually every subsequent turn.

Which brings us to the second point: Smith’s proactive filing hurts Trump, both legally and politically. It’s ironic. Smith has complained throughout the trial that Trump’s words could bias the jury. Accordingly, the special counsel sought a nondisclosure order that was so absurdly broad that even Judge Chutkan significantly reduced it (and the appeals court subsequently narrowed it even further).

But Smith now uses grand jury testimony (which is normally secret at this stage) and writes a tidy 165-page document containing all sorts of damaging statements about a criminal defendant made outside of a trial and without being exposed to the trial his rules of evidence or cross-examination, and exposes it publicly, generating national headlines. Do you know who will see these accusations? Of course the voters – and also the members of the jury.

And that brings us to our final point: Smith’s conduct here violates the DOJ’s core principles and policies. The Justice Manual — essentially the DOJ’s internal bible — includes a section titled “Actions That May Affect the Election.” Now: Is Smith’s submission admissible? May Does it have an impact on the election? Naturally. What does the rule tell us? “Federal prosecutors… must never choose the timing of any action, including investigative actions, criminal charges, or statements, with the goal of influencing an election.”

Remember, Smith begged the judge to flip the rules on their head so he could file this document first, and quickly—“any lawsuit,” by any reasonable definition—with the election imminent. Anyone who objected to James Comey’s outrageous announcements about the Hillary Clinton email investigation on the eve of the 2016 election should feel the same about Smith’s behavior now. What’s the difference? Both violated standard procedure of taking public steps shortly before an election that would obviously have an impact on that election.

I’ll hand this over to one of the Justice Department’s most distinguished graduates, who explained it to the Justice Department’s internal overseer: “For me it would be (a choice) 90 days off, and you think it has meaning.” There’s not much chance of one to influence choice. If there is no reason you need to take this action now, then don’t do it.”

These words were spoken by Sally Yates – former deputy attorney general, revered career lawyer, no fan of Trump (who unceremoniously fired her in 2017) and liberal folk hero. As always, Yates is spot on. And her statement conveys this indelible truth: If prosecutors change their principles depending on the identity of their prey, then they have no principles at all.