Trump Files a Motion to Hold Jack Smith in Contempt

Today, Donald Trump’s lawyers asked Judge Chutkan to hold Jack Smith in contempt. They want her to require Smith to “show cause” for why he didn’t violate the stay in the case while Trump’s immunity motion is on appeal. The full pleading is here.

It’s important to understand what is and isn’t at stake with this motion. It has no bearing on the ultimate issue of Trump’s guilt. This is an aside to the referee, saying that Smith violated the rules the game is supposed to be played by; that he was offsides so to speak, setting a couple of plays in motion before the clock started.

Trump has argued that nothing can proceed before the District Court while the appeal is underway. Smith has suggested that it’s appropriate for him to continue to meet deadlines, as long as there is no burden on Trump to respond. Trump argued in his motion that by filing motions when Trump doesn’t have to respond he is essentially “trying him in absentia.” The amount of outrage Trump’s lawyers expend on what is at worst a procedural error, along with the completely unevidenced assertion that Smith is filing pleadings to advance Joe Biden’s goals, is overblown. It seems unlikely to me that Trump will get his contempt ruling, let alone the monetary damages he seeks. It would be appropriate for the Judge to admonish Smith to stop filing during the stay or even to reject what he has filed so far, with leave for him to refile if her ruling is upheld on appeal and the case returns to her for trial. More than that doesn’t seem warranted here.

Trump complained earlier about Smith violating the stay after Smith sent Trump’s lawyers a draft list of exhibits and more discovery. Then, ahead of the new year, Smith filed a motion in limine, asking for rulings on evidence and arguments that would be admissible at trial. That’s what triggered Trump’s contempt motion.

When Jack Smith filed his motion in limine, I noted that: “the D.C. prosecution is currently stayed by order of the court. Smith takes the position, which he did in an earlier filing after the stay, that it’s permissible for him to file additional material consistent with previously set court deadlines during the stay. Trump’s lawyers are certain to call that out, and we could see a ruling from the court prohibiting additional filings during the stay. Smith’s position is that he can still file to ‘provide the court and defendant notice’ as well as to ‘promote the prompt resumption of the pretrial schedule’ if Trump loses his appeal. It’s likely Judge Chutkan will weigh in at some point on whether Smith’s assessment of this is correct.” And so, here we are.

But Trump has overplayed his hand with the request for a contempt order and damages. Smith did not ask for permission before filing, which might have been the better practice here, but he did explain to the court why he thought he was entitled to file, noting that he was filing without imposing any additional “litigation burden” on Trump to try and avoid further delays. There is no suggestion he wasn’t acting in good faith. And the court could have, but didn’t, reject his filings. It seems unlikely that the Judge would impose serious sanctions without issuing a warning first. She may tell Smith to knock it off while the appeal is ongoing, but Trump’s request that the Judge hold the government in contempt is an overreach.

The legal test to establish a civil contempt requires the movant, (that’s Trump here), to establish three elements with clear and convincing evidence:

• The existence of a clear, unambiguous court order,

• That the order required a party to behave in a certain way, and

• that the party didn’t comply with the order

Here, Smith will be able to argue that he believed he was acting in compliance with the stay, and had, when he filed the motion in limine, explained to the Court why he believed he was authorized to do so.

It will be hard for Trump to prevail under the test that his lawyers outlined in their motion.

As they have before, Trump’s lawyers seem prone to say too much, when saying nothing might benefit their client more. This line: “Likewise, the prosecutors dutifully repeat the Biden Administration’s long-debunked claim that President Trump somehow caused the events of January 6, 2021, when in truth President Trump called only for peaceful and patriotic protest and assembly,” falls a little bit short of the truth. Trump, however, was quick to put the motion to political use. His campaign “announced” it had filed the motion.

Yes, Trump’s statement falls within the technicalities of the gag order, which permits him to say whatever he wants to about Jack Smith. So, “deranged,” passes muster, as does “Crooked Joe Biden’s henchman.” Trump can still call it a “Rigged and Stolen 2020 Presidential Election.” He can accuse Smith of lacking respect for the rule of law.

Trump continues to inflict damage on key democratic institutions. He undermines his supporters’ confidence in them—they are all too vulnerable to his reckless statements and inspired to action by them far too often for comfort. We used to be a nation with confidence in the FBI and federal prosecutors. Trump has seriously damaged that with meritless criticism designed to save himself. Imagine this as the new norm in our “civil” society in every criminal case, with defendants blasting prosecutors and judges on social media. While they may not have the powerful megaphone Trump has, this is the kind of behavior that, if it persists, eats away at institutions.

We’re in this together,

Joyce