Jack Smith's 'October Surprise' was not that surprising...and that is the problem

"The most stupendous and atrocious fraud." Those words from federal prosecutors could have been ripped from the filing this week of Special Counsel Jack Smith defending his prosecution of former President Donald Trump.

Yet they were actually from a Justice Department filing 184 years ago, just days from the 1840 presidential election. Democratic President Martin Van Buren was struggling for reelection against Whig William Henry Harrison, and his Justice Department waited until just before voters went to the polls to allege that Whig Party officials had paid Pennsylvanians to travel to New York to vote for Whig candidates two years earlier.

It was considered by many to be the first "October Surprise," the last-minute pre-election scandal or major event intended to sway voters.

To avoid such allegations of political manipulation of cases, the Justice Department has long followed a policy against making potentially influential filings within 60 or 90 days of an election. One section of the Justice Department manual states “Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.” 

Jack Smith, however, has long dismissed such considerations. For years, Smith has been unrelenting in his demands for a trial before the election. He has even demanded that Donald Trump be barred from standard appellate options in order to expedite his trial.

Smith never fully explained the necessity of holding a trial before the election beyond suggesting that voters should see the trial and the results — assaulting the very premise of the Justice Department's rule against such actions just before elections.

After the Supreme Court rendered parts of his indictment against Trump presumptively unconstitutional, Smith made clear that he was prepared to prosecute Trump up to the very day of his inauguration. 

True to his reputation and record, Smith refused to drop the main allegations against Trump to avoid official decisions or acts that the court found to be protected in Trump v. United States. Instead, he stripped out some prior evidence linked to Trump's presidency, including witnesses serving in the White House. Yet the same underlying allegations remain. Smith just repeatedly uses references to Trump as acting as "a private citizen."

It is like a customer complaining that he did not order a Coke and the waiter pouring it into a Mountain Dew bottle and saying, "Done!"

Smith even refused to drop the obstruction of official proceedings, despite another recent Supreme Court decision (Fischer v. United States) rendering that charge presumptively invalid.

Smith is making his case not to Judge Tanya Chutkan, but to America's voters. Chutkan has consistently ruled with Smith to help him expedite the case. She permitted his hastened "rocket docket" despite declaring that she would not consider the election schedule as a factor in the pace of filings or even of the trial itself.

For critics, Judge Chutkan has proven far too motivated in the case. Indeed, many thought that she should have recused herself given her statement from a sentencing hearing of a Jan. 6 rioter in 2022. Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That "one person" was then brought to her courtroom for trial by Smith.

In their latest move, Chutkan and Smith used the Supreme Court decision to file a type of preemptive defense — an excuse to lay out the allegations against Trump in a 165-page filing filled with damaging accounts and testimonials against Trump, just weeks ahead of the election.

Even Chutkin herself acknowledged that Smith's request was “procedurally irregular," but she still allowed it. This was a premature exercise that would ordinarily occur months later, after defense filings. She could have scheduled such filings just a few weeks from now. She could have easily kept the filing under seal to avoid the appearance of political machinations. But the political effect appears to be the point. Chutkin again selected the most politically impactful option, at Smith's urging.

This was so "irregular" that ordinarily anti-Trump legal analysts, such as CNN's senior legal analyst Elie Honig, denounced Smith's filing as "an unprincipled, norm-breaking practice." He added that "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."

Others, as expected, applauded the filing as not just well-directed but well-timed. Smith was making his closing election argument to voters because he knows that the 2024 election will be the largest jury verdict in history.

If voters reelect Trump, then neither Chutkin nor Smith will likely see a jury in the case. This is why they must convict Trump now in the public eye, or else admit to an effective acquittal by plebiscite. 

Their timing could well backfire. The weaponization of the legal system is central to this election, including the role of the Justice Department in pushing the debunked Russia-collusion allegations from the 2016 race. For many, the contents of Smith's filing is not nearly as important as the time stamp over the case caption. Titled a "Motion for Immunity Determination," it seems more like a "Motion for an Election Determination."

Smith's raw political calculation should be troubling for anyone who values the rule of law. None of this excuses anything in these allegations against Trump. But the most disturbing part of Smith's October Surprise was that it was not in the least bit surprising.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”