It seems you can’t have a Presidential election anymore without a dreaded “October Surprise.” For those unfamiliar with this phrase, according to Rutgers Today, “[t]he term was popularized in 1980. As president, Jimmy Carter could not get the Iranian hostages released, and his failure was one of the main reasons he was losing in the polls to Ronald Reagan. The October Surprise was going to be his last-minute success in getting them out. Obviously, it never happened…[n]ow the term refers to any late-breaking major news that upends the presidential election.”
Since the 1980 election, there have been a series of revelations about various candidates, or events that have affected the race; “In October 1992, former defense secretary Caspar Weinberger was indicted for his role in the Iran-Contra scandal. George Bush Sr. was already behind in the polls, but this was seen as one more blow to his bid for a second term.” However, other “October Surprises” have not been so detrimental to one candidate or the other; “A few days before the 2000 election, it was revealed that George Bush Jr. had been arrested for drunk driving…the news did not have any significant effect.”
When it comes to former President Trump, the phase “October Surprise” has become clearly overused. “In 2016, both the [Access Hollywood] videotape of Trump…and FBI director James Comey’s decision to reexamine Hillary Clinton’s emails were dubbed October Surprises. By 2020, the term was being used so promiscuously that it referred to any election-related news that occurred in October. When President Trump was hospitalized with Covid, some people called that an October Surprise.” Ironically, “[t]he only [recent] October Surprise that seems to have had a direct impact on the outcome of the election was Comey’s investigation of Clinton. After that announcement, her lead over Trump narrowed and put him in striking distance.”
As the saying goes, hope springs eternal. “Even as Congress was on break, this week featured a number of ‘October surprises,’ including Iran’s missile attack on Israel and special prosecutor Jack Smith’s long-awaited court filing on Donald Trump’s role in the Jan. 6 attack on the U.S. Capitol,” Ana Radelat writes in the MinnPost. “Smith’s brief, unsealed by U.S. District Judge Tanya Chutkan…said Trump ‘resorted to crimes’ while trying to overturn his 2020 election defeat and should not escape charges. It challenges Trump’s claim that the U.S. Supreme Court has ruled that presidents have immunity for actions committed in office by saying the alleged offenses were carried out in a ‘private capacity’ as a private citizen and political candidate.”
We have previously discussed and analyzed the Supreme Court’s Presidential Immunity decision. “In Trump v. United States,” we wrote, “the US Supreme Court set up a three tiered system for examining claims of Presidential immunity. The first tier are acts within the President’s constitutionally mandated authority which are subject to ‘absolute immunity.’ The next are acts that may have ‘presumptive immunity,’ and are subject to examination with evidence that rebuts the presumption of immunity. The third are acts which are unofficial, and which enjoy no immunity.”
As we also discussed, the Supreme Court ruled that certain acts taken by Donald Trump were immune from prosecution since these actions were “within the President’s constitutionally mandated authority.” For instance, Jack Smith had accused Donald Trump of criminal acts when he instructed members of the Justice Department to investigate allegations of election fraud. Yet, as Chief Justice Roberts wrote, “The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.”
We then examined Jack Smith’s superseding indictment, in which he dropped some of the allegations against the former President that the Supreme Court ruled were immune from prosecution, while altering other allegations to conform to the High Court’s ruling. “In essence,” we wrote, “Smith asserts that the former President [spoke] to Vice President Pence as a private citizen and candidate for office, and not as President of the United States, while Pence was not acting as Vice President, but in his ‘ceremonial’ capacity as President of the Senate. In the alternative, Trump, as head of the Executive Branch, spoke to Pence outside of Pence’s Executive Branch responsibilities.”
Now, Smith has filed a brief in support of the rewritten allegations brought in his superseding indictment.
The brief was originally filed under seal, but DC District Court Judge Tanya Chutkan “agreed to release part of the government’s new arguments against the former president, saying the public must understand the court’s eventual decision on immunity and therefore needs access to the government’s arguments.”
Any analysis of Smith’s filing must begin with the unusual nature of this brief, and the timing of its filing and release to the public. As described by Law Professor and former federal prosecutor Jonathan Turley, “[t]o avoid…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…In [this] latest move…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.”
Professor Turley clearly believes the brief was filed and unsealed as a joint effort by Special Counsel Smith and Judge Chutkin to commit election interference. “Even Chutkin herself acknowledged that Smith’s request was ‘procedurally irregular,’ but she still allowed it,” Turley writes. “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.”
Clearly, some in the media hope that Smith and Judge Chutkin have accomplished their apparent goal of interfering in the 2024 Presidential election.. For instance, as described by the Media Research Center, Eugene Daniels and Rachael Bade of Politico were “so excited about this newly unsealed Jack Smith filing designed to harm Donald Trump that they blatantly declared that this Smith filing was ‘The first October surprise of 2024.’ Let us now join Daniels and Bade gleefully delighting in Smith’s ‘mountain of evidence’ against Trump…’It looks like we have October Surprise No. 1, [Daniels and Bade write] courtesy of a man you may have forgotten about: special counsel JACK SMITH. [I]n an unsealed legal filing, Smith gave his most complete look yet at the mountain of evidence he’s amassed against Trump in the case laying out his attempts to overturn the 2020 election. In recent American history, there are probably few moments that have been more scrutinized than the months leading up to Jan. 6, 2021, and yet the filing’s 165 pages were filled with new details and anecdotes.”
The allegations, however, really aren’t anything new. According to the brief, “[a]lthough the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted – a function in which the defendant, as President, had no official role.”
The brief is clearly an effort to refocus and restate Smith’s allegations against former President Trump while trying to conform to the framework established by the Supreme Court. Conversations between Donald Trump’s advisors and Vice President Mike Pence are repeatedly described as “private” and in Trump’s capacity as a “candidate.” Smith claims, for instance, that “[t]he evidence demonstrates that the defendant knew his [election] fraud claims were false because he continued to make those claims even after his close advisors – acting not in an official capacity but in a private or Campaign-related capacity – told him they were not true.”
The allegation that the former President didn’t believe his own assertions of election fraud is nothing new. As we note in Chapter 14 of our book, The Making of a Martyr, an Analysis of the Indictments of Donald Trump, in discussing the original January 6 indictment, “[f]rom all appearances, Trump believed there was election fraud, that it was indeed ‘outcome determinative,’ and as a result, he challenged the results of the election in every way possible…But an inability to establish what was in the mind of Donald Trump doesn’t stop Jack Smith – Trump’s belief was not mistaken, it was false! Why? Because people in the Justice Department, some lawyers and some courts told him so!”
The only new allegation here is that Trump’s actions were taken in his private capacity as a candidate for office, and not as the President of the United States, with immunity. It remains just as impossible to show that Donald Trump is not entitled to his own sincerely-held opinion, an opinion that he held in contradiction to the opinions expressed to him by those around him.
In other words, whether Jack Smith asserts that Donald Trump acted in a non-Presidential capacity is irrelevant. He still has an extremely weak case, built on factually unsupported suppositions, and filing 165 pages of allegations repackaged as the actions of a desperate candidate instead of a President abusing his authority do not make these allegations any stronger.
Recall also, that the President of the United States does have an obligation to uphold the Constitution, and consequently would have a Presidential interest in insuring a fair election. This means that many of the allegations made by Smith could involve acts which enjoy presumptive immunity (tier two of the Presidential Immunity decision). Thus, Smith’s brief is largely an effort to rebut that presumption of immunity.
It’s unclear what effect the October Surprise brief filed by Special Counsel Jack Smith will have on the electorate. But so far, the effect seems to be negligible. Turning once more to Professor Jonathan Turley’s analysis, “[the] timing [of publicizing the brief] 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…Smith’s filing [t]itled a ‘Motion for Immunity Determination’…seems more like a ‘Motion for an Election Determination.’”
In other words, it’s the obviousness of this blatant attempt to sway the election with Smith’s brief that will most likely cause the effort to be ignored by all but the most rabid of Trump haters.
Judge John Wilson (ret.) served on the bench in NYC