Former DOJ official questions timing of Trump election interference evidence release

As Donald Trump’s election interference case continues to make its way through federal court, some legal analysts are questioning the Justice Department’s handling of the case. A debate has focused on why the DOJ allowed a collection of evidence to be released so close to Election Day. Geoff Bennett discussed more with Jack Goldsmith, a Harvard law professor and former assistant attorney general.

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Geoff Bennett: As former President Donald Trump’s election interference case continues to make its way through a D.C. federal court, some legal analysts are questioning the Justice Department’s handling of the case.

After a federal judge this month unsealed a legal brief from special counsel Jack Smith containing new evidence in the case, a debate has focused on why the DOJ allowed the collection of evidence to be released so close to Election Day, with some arguing it could influence the presidential race.

One of those scholars is Jack Goldsmith, whose recent essay in “The New York Times” is titled “Jack Smith Owes Us an Explanation.” Goldsmith is a former assistant attorney general in the George W. Bush administration and now a professor at Harvard Law. We spoke with him yesterday.

Jack Goldsmith, thanks for being with us.

Jack Goldsmith, Harvard Law School: Thanks for having me.

Geoff Bennett: When you say Jack Smith owes us an explanation, you take particular issue with the timing of his brief. What do you say to those who argue that the special counsel was simply complying with the rules that Judge Chutkan, the judge in this case, laid out?

Jack Goldsmith: Well, the Justice Department has a set of norms, one of which is the so-called 60-day rule that says you don’t take an action or make a disclosure that’s close to the election that could impact the election.

And the judge asked the special counsel whether he had any objection to having these disclosures close to the election. He said he had no objection at all. So he seemed to think that there was no prohibition on doing so. And he had no objection to her timing and releasing it before the election.

Geoff Bennett: It’s my understanding that the special counsel has said on the record that the Justice Department’s internal so-called 60-day rule does not apply to cases that have already been charged or that are being litigated, to which you would say what?

Jack Goldsmith: I would say that I don’t think he’s made that clear at all.

I think you’re referring to a confused colloquy in the Miami documents case. There was a very important inspector general report in 2018 about — that talked about the 60-day rule. Its dominant understanding as conveyed in that report was that the rule prohibits disclosures or actions close to the election that impact the election.

There were some people that believed what you just said. But the inspector general said in 2018 that this is — rule needs clarity. And the Justice Department never gave clarity. And they haven’t explained why this disclosure was consistent with these norms.

Geoff Bennett: Is there a rule or a policy or an expectation that prosecutors, conversely, would sit and wait for the outcome of an election that could determine whether or not this case could even move forward?

Jack Goldsmith: This case is completely unprecedented, so I don’t know what the proper expectation is with regard to that question.

The point I have raised is that there is this rule, it was a big issue in 2016, as you recall, it was an issue in 2020, about not having disclosures that impact an election. And the only thing I’m asking for is for the department to explain clearly why it thinks that what it did is consistent with that norm.

It’s very important that the department has these norms, so that — to ensure that not only that they, in fact, don’t act politically, but they appear not to act politically. And this is an unprecedented prosecution of a former president by an administration that is headed by the president and the vice president, who were and are running against this president in this election.

And in this context, more than any other context in the department’s history, because this is the most sensitive investigation in its history, it needs to be really clear and explicit about why it’s complying with these norms. And it just hasn’t been.

Geoff Bennett: There are also those who take issue with the Supreme Court’s role in all of this, that the court, with its conservative majority, refused Jack Smith’s request to expedite consideration of Donald Trump’s claim of presidential immunity, and that the ultimate ruling on immunity has further delayed consideration.

Jack Goldsmith: It’s true that the ruling on immunity further delayed consideration. That’s absolutely true, but that’s irrelevant to Smith’s duty to comply with the norms about not impacting or appearing to impact an election.

So what the court did — and we can debate that if you like, but what the court did delay the trial which Smith was pushing to try to have before the election, which also raised questions under department norms. There’s no doubt that what the court did delayed the trial, but that’s not relevant to Smith’s duties in the run-up to the election.

Geoff Bennett: Why hasn’t the DOJ, in your view, cleared up some of these perceived questions about this 60-day rule?

Jack Goldsmith: It’s a real mystery to me. This was — again, the inspector general in a widely read report in 2018 explained that this rule was ambiguous and uncertain and needed to be clarified.

He asked for clarification. It’s been six years now and the department hasn’t clarified, and I don’t know why. It’s exactly what I think the department should be doing. They should have clarified it, in my opinion, before this most sensitive of prosecutions, and they should have explained what the rules were up front before they started applying them in secret to tell us.

Let me be clear. I really do believe that the department believes it’s complying with all relevant norms. It’s stated so. Attorney General Garland has stated so, and I believe that they believe that. All I’m asking for is that they explain it to the public, so that it doesn’t appear like they’re acting or allowing disclosures that could impact the election.

Geoff Bennett: Does this raise questions for you about the special counsel’s work or approach moving forward?

Jack Goldsmith: I mean, this is the case — this is the only case where this is relevant for the election. I don’t believe that there’s anything going on right now in the documents case that I’m aware of that implicates this concern.

Geoff Bennett: Jack Goldsmith, thanks so much for joining us and sharing your insights. We appreciate it.

Jack Goldsmith: Thank you so much.