New filing shows Jack Smith’s witnesses include ex-Trump lawyers and members of Congress: legal experts

28 December 2023

It remains to be seen whether the trial in special counsel Jack Smith's election interference case against former President Donald Trump will go ahead as scheduled in March 2024 or be delayed.

Trump is claiming he enjoys "absolute immunity" from prosecution because he was still president in late 2020 and early 2021 — a claim that Judge Tanya Chutkan has flat-out rejected, ruling that presidents don't enjoy a "divine right of kings" in the United States. Smith is hoping the U.S. Supreme Court will eventually rule on the matter; in the meantime, the special counsel continues to build his case against Trump — a case that, according to MSNBC legal analyst Lisa Rubin, may include some of Trump's former attorneys and members of Congress as witnesses.

In a thread posted on X, formerly Twitter, on December 27, Rubin posted, "NEW: Jack Smith and team just filed a motion to exclude various kinds of evidence & arguments at Trump's election interference trial, including the oft-recited claim that the case is itself a form of election interference or vindictive and selective prosecution."

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Rubin continued, "They also seek to exclude evidence about 1/6, including evidence about agency preparation for that day or cross-examination that would cause unnamed government witnesses to breach attorney-client privilege or protection under the Constitution's Speech and Debate clause…. Put another way, the government is making clear they have testimony from Trump lawyers and/or members of Congress. Gulp."

The MSNBC legal analyst also tweeted, "But maybe as significant is that the motion was made at all. The case is stayed as Trump's immunity claims work their way through the D.C. Circuit, where oral argument is scheduled for 1/9."

Newsweek's James Bickerton observes that former federal prosecutor Joyce White Vance, in her Substack analysis, writes that Smith's filing "suggests members of Congress, their personal or office staff, or people who received communications from them."

According to Bickerton, Smith's filing indicates that the special counsel "is anticipating that some of the prosecution's witnesses could hold attorney-client or congressional speech or debate privileges, and wants to ensure Trump's legal team isn't able to use that to make them appear deceitful during cross examination."

"In turn, it suggests that the witnesses could include attorneys who have previously given Trump legal advice, or members of Congress," Bickerton explains. "The Constitution's speech or debate clause offers certain legal protections to members of Congress that can be invoked if they are asked to testify in court."

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