Jack Smith just wants to prosecute his case against Donald Trump

“Because it didn’t need to disclose the new details now and because it was foreseeable that the disclosures would cause approximately half the country to suspect the department’s motives, it is hard to understand any reason to go forward this close to the election other than to influence it — a motive that would clearly violate department policy,” Goldsmith wrote, adding that “it is imperative that the department explain in detail why this inference is false and why its actions comported with past department practices and understandings.”

Former federal prosecutor Elie Honig, a CNN legal analyst, was even sharper. In laying out his case against Trump, Honig wrote in New York magazine, “Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects.”

Those are sharp assessments, and not from Trump apologists. So, did Smith go rogue here? Not in my view.

The unfortunate intersection of the first prosecution of a former president and the fact that Trump is running for reelection has long posed complications that have only intensified as the election draws near. Should prosecutors and judges overseeing the cases against Trump pay any attention to the electoral calendar or proceed as if the campaign did not exist? Was it legitimate to have pressed to bring the 2020 election interference case to trial before the 2024 election, as Smith clearly sought to do without explicitly saying so?

These are contested questions. Not so the immediate matter of Smith’s brief to U.S. District Judge Tanya S. Chutkan, unsealed last week. That is a predictable, necessary and legitimate prosecutorial step in the case, a response to an order from Chutkan herself.

Goldsmith has an understandable worry about whether some members of the public will view the filing as a partisan hit. That’s not healthy for the Justice Department. But it’s also unhealthy to have a system engineered so that Trump gets to endlessly kick the can down the road. No rule, policy or norm of the department requires prosecutors to sit on their hands while the country awaits the results of an election that will determine whether the case ever goes to trial.

Let’s review how we got to this point: The election interference case against Trump was supposed to have been tried beginning March 4, which would have allowed it to have been concluded long before the general election campaign was underway. That didn’t happen because Trump, as was his right, appealed Chutkan’s ruling that he was not immune from criminal prosecution.

Seeking to speed up the resolution of that issue, Smith asked the Supreme Court to leapfrog the appeals court and decide the matter itself. That was back in December. (Goldsmith, by the way, decried this “rush to trial,” although a bit of rushing might have helped avoid the current collision with the electoral calendar.) The justices declined Smith’s request and took their time, not issuing the immunity ruling until July 1, the final day of the court’s term.

Then, in its needlessly overbroad decision, the court sent the case back to Chutkan with instructions to distinguish between Trump’s official conduct (at least presumptively immune from prosecution) and unofficial conduct (not immune.) Responding to the ruling, Smith obtained — before the 60-day rule would kick in — a slimmed-down, superseding indictment designed to avoid some of the immunity issues.

That led to the filing at issue here. The special counsel asked Chutkan’s permission to file a brief defending the indictment. That was, as Chutkan noted at a hearing last month, “not in the ordinary course” — it would come even before Trump’s lawyers filed their own motion to dismiss the charges — but she observed that “there needs to be some forward movement in this case, regardless of when the election is held.”

Notably, prosecutors didn’t propose when they should file the brief. That determination was up to Chutkan, who asked how quickly they could proceed and then set a Sept. 26 deadline. In other words, the question of when the brief would come and when it would be made public, before or after the election, was up to the judge, not the special counsel — and Chutkan said she wasn’t going to slow things down for that reason.

“It strikes me that what you’re trying to do is affect the presentation of evidence in this case so as not to impinge on an election,” Chutkan told Trump defense attorney John Lauro. “And I’m not considering that. That’s not going to be a factor I consider at all in my decision.”

So, what are the Justice Department rules, and were they violated here? There are three potentially relevant provisions — all of them internal guidance, none of them enforceable by Trump against the department.

First, the 60-day rule. This is not a written rule, as the department’s inspector general explained in a report on former FBI director James B. Comey’s comments about Hillary Clinton in advance of the 2016 election. Instead, it is a general policy against taking public investigative steps or bringing indictments close to an election. But the rule, such as it is, does not clearly apply to cases that have already been charged and are proceeding through the criminal justice system.

Second, the Justice Manual, the department’s official guidance, provides that prosecutors “may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Further, it says, “Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section.”

As special counsel, Smith — himself a former chief of that section — is obliged to follow department policy, and his court filings suggest he did just that. The election is looming, but I am aware of no evidence that Smith “select[ed] the timing” of his brief “for the purpose of giving an advantage or disadvantage to any candidate.” He wants to prosecute his case.

Third, like his predecessors, Attorney General Merrick Garland issued a memorandum on “Election Year Sensitivities,” reinforcing the imperative of avoiding the appearance of politicization. The relevant part essentially restates the admonitions and procedures of the Justice Manual.

Did the special counsel’s filing run afoul of any of these? Goldsmith argues that filing the brief “is in clear tension with the Justice Department’s 60-day rule,” adding: “Perhaps the department thinks the new disclosures are marginal and won’t affect the election or that the rule does not apply to litigation steps in previously indicted cases, even if they would affect the election.” In fact, the disclosures are marginal.

But more to the point, the department has previously said precisely what Goldsmith suggests. Arguing before Judge Aileen M. Cannon in the Mar-a-Lago classified documents case, special counsel prosecutor Jay Bratt said that both the 60-day rule and the Justice Manual provisions do not apply to cases that have already been indicted and are being litigated.

Honig is even more worked up. “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 conduct now,” he wrote. “What’s the distinction? Both violated ordinary procedure to take public steps, shortly before an election, that plainly would have an impact on that election.”

This comparison proves my point. Comey took it on himself, ignoring his superiors at the Justice Department, to opine on Clinton’s conduct and make other revelations. Smith is acting in his duly constituted role as special counsel, under the supervision of and in response to the orders of a federal judge. He is not a lone cowboy but a prosecutor doing his job — or trying to.