Jack Smith Started the Mudslinging With His Speaking Indictment and Press Conference — Now He Wants The Rhetoric Turned Off

by ShipWreckedCrew

Special Counsel Jack Smith has filed a motion seeking a protective order that would limit former President Trump’s ability to publicly comment on various aspects of the case against him in the District of Columbia. Most specifically SCO Smith wants Pres. Trump to quit disparaging the investigation, the prosecutors, the Court in D.C., the residents of D.C. and the District itself. The motion claims that such comments might “incite” Trump supporters, intimidate witnesses or prospective jurors, etc., with all the above creating a risk of a “substantial likelihood of material prejudice” to the proceedings.

To support the argument that the Court possesses authority to take this step, SCO Smith’s motion cites to a Local Rule of the District Court for the District of Columbia, as well as two Supreme Court decisions dealing with cases where extrajudicial (outside of court) comments by participants were among the issues on appeal.

Gentile v. State Bar of Nevada involved comments made by an attorney at a press conference following his client’s indictment. The defendant was acquitted at trial, but a complaint was filed against the attorney for violating Rules of the Nevada Supreme Court in making comments at the press conference which questioned the good faith and integrity of the prosecution.

Sheppard v. Maxwell is the infamous case involving the circus-like trial of Sam Sheppard, accused of murdering his pregnant wife. Extensive pretrial publicity and press conduct during the trial itself turned into a media circus. The Supreme Court found that Sheppard’s right to a fair trial was denied by the trial judge’s failure to exercise control over the conduct of the parties and the press before and during the trial.

What should not be overlooked is that SCO Smith started the public mudslinging by writing a 45 page indictment in which 40+ pages were purely gratuitous and unnecessary to charging the offenses. The allegations of an indictment are written as if they are established “facts” and then reported dutifully by the press as if they are facts. Smith stood up in a press conference and made a public statement that did more of the same — referred to the allegations of the indictment as if they were beyond dispute or controversy.

But a first year law student learns in Criminal Procedure that the allegations of an indictment are just that — allegations. They are a statement of what the prosecutor claims he will prove with admissible evidence at trial. But the admissibility of that evidence, as well as testing that evidence through cross-examination and the presentation of contradictory evidence determines what the “facts” ultimately are — not the creative writing skills of the prosecution.

There is no better example of this — as I’ve written here before — than the last version of the DOJ indictment in the Oath Keeper case that referenced about two dozen times a “Steward Rhodes Plan” to obstruct the congressional certification. But at trial the lead FBI agent was forced to admit that NOT ONE PERSON interviewed by the FBI as part of the investigation ever said there was a “Rhodes Plan” to obstruct the certification. At trial the Government fell back upon the theory that the “plan” didn’t need to be “express”, it could be “implied” from conduct.

You wouldn’t know that from the way the indictment was written. So, about the allegations in SCO Smith’s indictment ….

The allegations indictments are not factual, and the current DOJ practice — which is a disgusting abrogation of DOJ’s obligation to respect the “presumption of innocence” at the foundation of the criminal justice system — is to write long “speaking indictments” loaded up with inflammatory claims and allegations that it may — or may not — be able to prove at trial.

But such indictments serve a purpose at the press conference following the filing by getting DOJ’s narrative out to public as if it was factual. That is the ONLY reason for writing them the way they are written now.

But faced with a push-back by Pres. Trump and his legal team against the narrative in the indictment, Smith wants a protective order to prevent the assault on that narrative. The only purpose — in reality — is to keep Trump from claiming there are inaccuracies and mischaracterizations — from his point of view — and advance the narrative of his defense as a counterpoint to what SCO Smith has set in motion.

SCO Smith gives the game away right at the start of his motion:

 
Right there is the conceit — SCO Smith premises his argument on the truth of the ALLEGATIONS in the indictment, i.e., that Pres. Trump “launched a disinformation campaign” in the aftermath of the 2020 election , and Trump is going to do it again with respect to the criminal ALLEGATIONS made by Smith. He wants a protective order based on the allegations that he hasn’t yet proven to be true.

SCO Smith’s motion relies heavily on the Supreme Court’s 1999 decision in a case called Gentile v. State of Nevada Bar where an attorney held a press conference after his client was indicted, making a short statement and answering a few questions. Some of the comments suggested corruption and bias on the part of the law enforcement agents and agencies who were responsible for the indictment.

After his client was was acquitted at trial, the Nevada Bar filed a complaint stating that the attorney’s comments at the press conference violated a Nevada Rule of Court. The state courts in Nevada all upheld a determination against the attorney and private reprimand. The United States Supreme Court reversed, finding the Nevada Rule of Court “void for vaguenss.”

The substance of the attorney’s comments are not important here, but what is important about Gentile is that the Court was fractured in its reasoning and outcome. That makes it important to be mindful as to what was said in various parts of the multiple opinions.

Justice Kennedy wrote for himself and four other Justices — a majority — on only the very narrow “void for vagueness” finding that, for those five justices, resolved the case.

Chief Justice Rehnquist wrote an opinion as well, a portion of which was joined by four other Justices, meaning his opinion in that segment was also an Opinion of the Court.

Knowing which segments have a majority and what those segments concern, is key to understanding the outcome — and why it does not support the motion that SCO Smith is making.

The Opinion of the Chief Justice addressed a collateral issue. The language of the Nevada Supreme Court Rule in question was drawn largely from the ABA Model Rules of Professional Responsibility, as was true of many other licensing entities in other states. The Chief’s Opinion made clear that the regulation of attorney speech addressed by the ABA Model Rules was not in conflict with the First Amendment rights of attorneys, only the particular language which the State of Nevada had adopted based on the Model Rules.

The Chief’s Opinion deals extensively with the role of attorneys in the criminal justice system, and that they are participants subject to ethical and court-imposed restrictions on how they conduct themselves. No where is it more evident that their First Amendment rights are curtailed than by the Rules of Procedure and Evidence that limit what they can say inside the courtroom. On that basis, the five Justices in the Chief’s majority had no problem with the concept of State Bars imposing limits on the First Amendment rights of attorneys in terms of extrajudicial statements concerning cases where they are participants. The Court — based on Sheppard — also sanctioned efforts by a trial court to protect the integrity of judicial process from extrajudicial influences that interfere with a defendant’s right to a fair trial.

But Gentile did not involve a gag order of the kind sought by SCO Smith so it is of only limited utility, and it is certainly not dispositive on whether and to what extent a trial court judge can limit the First Amendment rights of a defendant in a criminal case.

Pres. Trump stands in very different shoes from the attorney in Gentile. He is not a voluntary participant in the process. That he is a defendant in a criminal case, with all its attendant circumstances, only highlights this passage from Justice Kennedy’s Opinion that also commanded five votes:

 
This passage underscores how the First Amendment rights of a defendant in a criminal case, and his advocates, are entitled to strong consideration when the challenged speech involves criticism of the Government — SCO Smith, DOJ, and the Court.

“[H]istory shows that speech is suppressed when either the speaker or the message is critical of those who enforce the law.”

That is EXACTLY what the SCO is proposing to prevent Pres. Trump from doing with his requested protective order.

Sheppard v. Maxwell is also of almost no benefit to SCO Smith’s request for a gag order — primarily because it did not involve extrajudicial comments by the defendant. Rather it concerned prejudicial publicity which denied the defendant a fair trial. Significant to the outcome was that much of the publicity was driven by leaks to the press from both the prosecution and the defense. This caused information — accurate and inaccurate — that was never admitted during the trial to be widely broadcast both locally and nationally before the trial started and while it was underway. The jury was not sequestered, and the press coverage of the extradjudicial information so saturated the local community that the defendant’s right to a fair trial by an unbiased jury was denied.

Sheppard v. Maxwell is often relied upon in considering the degree to which the trial court can control extrajudicial actions of participants so as to protect a DEFENDANT’S rights to a fair trial as set forth in the Fifth and Sixth Amendments.

Those “fair trial” rights do not apply to the Government.

But more significant, Sheppard did not involve any court suppressing free speech calling into question the legitimacy of a prosecution based on political considerations when that defendant is the opposition candidate against “those who enforce the law.”

Given the unique circumstances, the judicial system needs to simply recognize the need to encounter the lesser of two problems and not impose a “prior restraint on free speech that makes it unhappy, but rather it should prepare itself to navigate turbulent waters.

Notably, there is one case cited by the Government that involves a factual scenario not dissimilar. The facts and outcome of that case cause me to question just how closely the Smith SCO read the facts before citing the case.

United States v. Brown is a case from the Fifth Circuit and involved the elected Insurance Commissioner for the State of Louisiana. In what was alleged to be a politically motivated prosecution, Brown was indicted on September 24, 1999, while running for reelection in the November 19, 1999, Louisiana state elections.

In a news conference shortly after the indictment was issued, Brown declared his innocence as well as his belief that he was the victim of a “political drive-by shooting” at the hands of “an out-of-control prosecutor.” After some delays, the trial is currently scheduled to commence on August 21, 2000.

But that was just the beginning.

 
In Brown the District Judge did on his own what SCO Smith has asked the Judge in the D.C. case to do — limit Trump to nothing but the most anodyne commentary about the ALLEGATIONS made against him, and barring him from questioning the good faith or legitimacy of the Biden DOJ’s use of the criminal justice system to silence him during the campaign.

But after the gag order was raised with the District Judge in Louisiana, “[O]n September 28, 1999, the district court temporarily lifted the gag order in this case to avoid interfering with Brown’s re-election campaign for Insurance Commissioner.”

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