Trump Claims DOJ Filing is Election Interference: Legal Experts Disagree

Former President Donald Trump does not like federal prosecutors. Lately, he’s been picking on Jack Smith. A couple of years ago, U.S. Attorney General Merrick Garland appointed Smith as Special Counsel to oversee investigations related to former President Donald Trump, including the investigation into the handling of classified documents at Mar-a-Lago and aspects of the January 6th Capitol attack. This was bound to make enemies with the former president.
Now, Trump has accused Smith of election interference following the unsealing of a new filing detailing Trump's efforts to overturn his 2020 election loss. Trump and his campaign argue that the release of the filing, which occurred just a month before Election Day, violates internal policies of the Department of Justice. However, legal experts and court documents reveal a more nuanced situation.
In case you’re lost on what exactly this “filing” is all about, let’s rewind.
Judge Orders Filings from Parties
It’s all related to a landmark Supreme Court ruling from this past July, which broadened the scope of presidential immunity but left it to lower courts to determine the specifics. The ruling established that former presidents have presumptive immunity for actions taken in their official capacity. However, it clarified that they are not shielded from prosecution for actions taken in a private capacity. You can read more about the decision in our blog from back then. The relevant part here is that this decision required the lower courts to conduct a "close" and "fact-specific" analysis to determine which actions are covered by presidential immunity and which are not.
U.S. District Judge Tanya Chutkan, overseeing the Trump trial, was then left with the question of determining what actions can be considered in one’s official capacity as president versus private actions. As such, she ordered both special counsel Jack Smith's team and Donald Trump's legal team to submit arguments regarding which of Trump's actions were official presidential duties and which were private actions.
This led to Smith's detailed filing to argue that Trump's efforts to overturn the 2020 election were fundamentally private actions and not protected by presidential immunity. Smith's 165-page filing asserts that Trump committed "private crimes" by working with a team of co-conspirators to disrupt the electoral process through fraud and deceit. The filing includes detailed evidence, such as an anecdote where Trump allegedly dismissed concerns about Vice President Mike Pence's safety during the January 6 Capitol riot.
The filing was initially made under seal due to its sensitive content, including grand jury and witness information. Judge Chutkan reviewed the proposed redactions and ultimately decided to make the document public. Legal experts note that Smith's team followed court orders and deadlines, not engaging in election interference.
Trump Claims DOJ Didn’t Follow Rules
Trump and his campaign have accused Smith of violating the Justice Department's informal 60-day "quiet period" policy, which advises against taking public steps in politically sensitive cases close to an election.
What he’s referring to is an unwritten guideline that suggests the DOJ should avoid taking any overt investigative or prosecutorial actions related to candidates or election-related matters within 60 days of an election. This policy aims to prevent any perception of the Justice Department from influencing the outcome of an election or appearing to favor one candidate over another. It's designed to maintain the integrity and impartiality of the electoral process.
However, it's important to note that this is not a formal rule or law, but rather a tradition or norm that has been observed to varying degrees over the years. Legal experts argue that this policy is not binding law and does not apply to actions mandated by court orders. Once a case is before a judge, prosecutors must adhere to the court's schedule.
It’s also important to highlight that while Trump is bringing legal action against Smith, the decision to release the filing was made by U.S. District Judge Tanya Chutkan, not by Smith or his team. The filing was initially submitted under seal due to sensitive material, including grand jury and witness information. After reviewing the redactions proposed by Smith's team, Chutkan deemed them appropriate and decided to make the document public.
What to Expect
Trump has vehemently criticized the filing, calling it "pure election interference" and "weaponization of the government." His legal team continues to seek delays and has filed court papers challenging the case on legal grounds. They argue that the allegations cut to the core of Trump's responsibilities as president, a position Judge Chutkan has not accepted.
Trump's defense team has until November 7 to respond to Smith's filing. Even if Judge Chutkan sides with prosecutors, the case is expected to be appealed and could potentially reach the Supreme Court. Should Trump win the upcoming presidential election, he has several options to drop the charges, as DOJ policy is to not prosecute sitting presidents. His attorney general would almost certainly dismiss the case, and he could also potentially pardon himself.
Related Resources:
- Is a President Immune from Prosecution? Ask the Supreme Court (FindLaw's Courtside)
- SCOTUS Gives Broad Criminal Immunity to Presidents (FindLaw's Federal Courts)
- Article II: Presidential Immunity to Criminal and Civil Suits (FindLaw's U.S. Constitution Pages)