Special Counsel Jack Smith making rare
public remarks on Friday
after unsealing the historic
40 plus page
federal indictment of former president
and current 2024 candidate Donald Trump.
My office will seek a speedy trial
in this matter
consistent with the public interest
and the rights of the accused
We very much look forward
to presenting our case
to a jury of citizens
in the Southern District of Florida.
Smith did not go into details
of the indictment,
but said people ought to read it.
Joining me now is Ellie
Honig, CNN's senior
legal analyst, former assistant U.S.
attorney
for the Southern District of New York.
So great to have you back Ellie.
Let's talk about big picture.
First of all, he's investigating.
He, Jack Smith, both
January six and Mar a Lago documents.
What do you make of the fact
that this was an indictment pertaining to
one and not the other?
Well, Michael, and
let's keep in mind, Mar
a Lago has essentially lapsed January 6th
because DOJ
even before Jack Smith was appointed.
They purportedly have been investigating
January six, essentially
since it happened.
So we are two and a half years out.
Mar a Lago really
didn't surface
until the search warrant hit
almost a year ago.
So what this tells me, obviously,
we now have an indictment on the Mar
a Lago documents.
We'll talk more about that.
January six is still ongoing at DOJ
I don't think there's much of a
realistic possibility
that it gets charged by DOJ anytime soon.
And one indicator of that is
we've not seen any progress really.
We've not seen anybody
close to Donald Trump being charged.
Remember,
there's a whole sort of
secondary cast of characters
around Trump on January six.
Jeffrey Clark, John Eastman,
no movement towards any of them.
So there's been sort of radio silence
that's still pending.
But it wouldn't surprise me
if the ultimate decision from DOJ
is no charge against Trump.
On January six, Right.
I guess that's really what I was asking.
Do you read into this
that maybe Trump is getting a pass
in the eyes of DOJ for January six?
Or is it that
this is a much more straightforward case?
Well, I think it's both.
I think this case
and I think the indictment
is fairly straightforward and well done.
And I think it makes sense to me
that this was charged more quickly.
I also think that the charging
of this case gives Merrick Garland
perhaps some political cover
if he ends up not charging.
January six,
I know we see Garland and Jack Smith
as these sort of nonpolitical icons,
but they're aware of public perception.
They understand that it's important
that DOJ be seen as fair.
And I think
ultimately if Garland does not charge
on January six,
people who would be upset by
that may look at the charge
we saw this week and think, well,
at least he charged one of those cases.
Okay.
I'm glad you brought up
Merrick Garland, the attorney general,
because previously here
you and I have talked
about the concept
of prosecutorial discretion.
I made the argument that I had
I thought
Smith had a very straightforward task,
but that there was some question
as to
whether Merrick Garland
would accept the recommendation
that he was provided
by the special counsel.
This is Merrick Garland decision, right?
Yes.
Ultimately, it's Merrick
Garland decision.
The way it works under the regulations
is the special counsel.
Jack Smith has control of his day
to day investigation.
It's supposed to be hands off,
but at a certain point,
the special counsel has to run
a potential indictment or decision
not to indict.
That absolutely by law,
has to go to the attorney general,
who then has to defer
not automatically,
but has to generally defer towards
what the special counsel wants.
So we know for sure
that Jack Smith recommended an indictment
And we know for sure that Merrick Garland
approved it. And I agree with you.
I think Merrick Garland, as the A.G.,
has to take a broader look
and has to think about the broader
political picture.
And we now know the end result of
that calculus.
I said
in my opening commentary today
that the photographs
contained in the indictment
and by the way,
I want to know
how rare that you would see
pictures in an indictment like this.
Put that one
up, Katherine,
that I call the Rorschach test,
because, you know, to some there it is.
You look at it
and it's stuff is spread
out on the floor,
like, oh,
my God,
is this the careless way
with which
he was treating these documents?
And then Trump's response is to say,
who spread that stuff on the floor?
And by the way,
all I see,
according to Trump,
our newspaper headlines.
What's the impact of what I'm showing
right now?
You know, the pictures to which I refer.
I do.
Yeah.
So, first of all, you're right, Michael.
It's sort of a new thing
to have photographs and indictments
I remember seeing the first one
maybe five years ago
when I was just getting ready
to leave a prosecutor's office
and thought, well,
you can put a photo in an indictment.
It was unthinkable to me.
This traditional prosecutor
and now they're there all the time
and they should be there evidence.
Why not?
It's such an interesting Rorschach test,
but I'm not really buying the.
Well, they're just newspaper side.
Yes, they are just newspapers.
But the fact that
some or perhaps
many of the documents
were innocuous or souvenirs, fine.
That doesn't undermine
the fact
that even a small portion of them
were decidedly not
And the indictment
lays out
the high level
of sensitivity of those documents.
So it doesn't much matter to me
if the sensitive documents
are all alone in one folder
or are surrounded by tchotchkes.
Is, to use your excellent phrase
from earlier,
it's the ones that are sensitive that we
care about here.
Jack Smith says he wants
to give them a speedy trial.
Is that going to happen?
Not by the legal definition of speedy.
So the federal rules say
that a defendant
is entitled to be tried within 70
70 days of an indictment.
Michael, no
federal case
ever gets tried anywhere near 70 days.
The thing
that's important to note here, though,
is it's not really up to Jack Smith
when the trial happens.
Jack Smith was just
saying the thing
that all good prosecutors
are trying to say
you are sort of trained from day one.
If a judge said to me today,
you have to go to trial tomorrow
at 9 a.m.,
I would say we're ready for trial
your honor.
That's just you automatically say that
that's always your position really.
Who governs
when trial happens is a the judge
but with more deference
towards the defendant
because the defendant's
the one with constitutional rights,
with the ability to bring motions,
with the need to prepare his defense
to do his own investigation,
the defense is just starting
their investigation
theoretically on the day
they get the indictment.
So Jeff
Smith is just saying we're ready to go
as soon as possible.
I think that's an important message
to send.
But ultimately, he doesn't control that.
Ellie, on my
civil side of the aisle,
I know a thing or two
when I have a choice
of of venue, juristic motion
where I'm going.
I'm looking for a friendly plaintiff
audience.
In this case,
Jack Smith could have brought charges
in D.C.. Right.
But instead goes to Florida
which I guess by rights is where
most of the conduct occurred.
But you would think, politically
speaking, it's
a more hospitable
jury for Donald Trump down South
This is the single most consequential
turn of the week
other than the indictment itself
dropping and really a shocker
because up until three or four days ago,
everything was in D.C.
The team,
the prosecution team was in D.C.,
the grand jury was in D.C.
and it looked like
they were going to charge in D.C.
And you're right,
there's an enormous difference
in the jury pools here.
D.C.,
Donald Trump
got 5%, just over 5% of the vote in 2020
meaning about 95% of the people
who would have been in that jury pool
in D.C.
voted against him.
Of course, Trump won Florida in 2020
most of the southern counties
where this is going to
draw its jury pool for him
he won at least 40%.
So you're looking at a very different
jury pool.
And people will say,
well jurors are instructed
they're selected.
They're sort of vetted out
and they're told don't
bring your political views
into the courtroom Nonsense.
I've tried enough cases.
Jurors are human beings,
and especially in Donald Trump.
I'm not saying it's impossible
that somebody who likes Trump votes
to convict him or vice versa.
But Man-To-Man
do you want to be in front of a jury
that doesn't like the guy?
And let me say, I give DOJ credit here.
They did the right thing legally
because they
definitely have
proper venue down in Florida,
where Mar
a Lago is, it's actually not clear
they have venue in D.C.
They could have tried in D.C.,
fought that legal battle
and hoped for the better jury pool,
but instead they did the right thing.
They went with what?
Okay.
I have a I have a different deal with
I have a different
I have a different take.
And that is that it was for expediency.
They want to hurry up and get to trial.
And they know that if I went to D.C.,
it would be more time off the clock
as he challenged and tried to move it.