Days after releasing new material purporting to implicate former President Donald Trump in the January 6th, 2021 riots at the Capitol, Justice Department special counsel Jack Smith is taking incoming fire including from one CNN legal analyst who predicted his latest move could undo his entire J6 case.

Elie Honig, the contrarian contributor who for months has said that Smith’s case is on thin ice, wrote in the Intelligencer Friday that Smith, having “failed in his quest to try Donald Trump before the 2020 election,” is now “bend[ing] ordinary procedure to get in one last shot, just weeks before voters go to the polls.” The transgressions committed by Smith are many, Honig writes, but chief among them is his political strategy to “chip away at Trump’s electoral prospects” by any means necessary, even if it means employing supra-legal methods. Having failed to prosecute Trump on the immunity argument, Smith is now leaning on “unprincipled, norm-breaking practice[s]” to tarnish Trump in the eyes of voters, not a jury, according to Honig.

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Earlier this week, Smith asked U.S. District Judge Tanya Chutkan for permission to file a 180-page brief outlining what he claimed are instances of Trump being well-aware of the danger posed by violent J6 rioters. His submission exceeded the maximum length of a court filing by fourfold, Honig notes. Then Smith turned the usual course of business in such a case on its head:

First, this is backwards. The way motions work – under the federal rules, and consistent with common sense – is that the prosecutor files an indictment; the defense makes motions (to dismiss charges, to suppress evidence, or what have you); and then the prosecution responds to those motions. Makes sense, right? It’s worked for hundreds of years in our courts.

Not here. Not when there’s an election right around the corner and dwindling opportunity to make a dent. So Smith turned the well-established, thoroughly uncontroversial rules of criminal procedure on their head and asked Judge Chutkan for permission to file first – even with no actual defense motion pending. Trump’s team objected, and the judge acknowledged that Smith’s request to file first was “procedurally irregular” – moments before she ruled in Smith’s favor, as she’s done at virtually every consequential turn.

With little more than conjecture, Honig adds, Smith has essentially shifted to prosecuting his case in the court of public opinion which is “prejudicial to Trump, legally and politically.” Ironically, “Smith has complained throughout the case that Trump’s words might taint the jury pool.”

“Yet Smith now uses grand jury testimony (which ordinarily remains secret at this stage) and drafts up a tidy 165-page document that contains all manner of damaging statements about a criminal defendant, made outside of a trial setting and without being subjected to the rules of evidence or cross-examination, and files it publicly, generating national headlines. You know who’ll see those allegations? The voters, sure – and also members of the jury pool,” Honig wries.

Also of importance is Smith’s violation of a sacred tenet of the DOJ: do not prosecute or practice in such a way as to belie political motivations. The timing of his filings are not so different than the way former FBI Director James Comey conducted his 2016 investigation into Hillary Clinton’s emails right before the election. “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,” Honig writes. He quotes a DOJ alum who explained Smith’s predicament: “To me if it [an election] were 90 days off, and you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now, you don’t do it.”

Most observers expect the case will die on the vine if Trump wins, giving him the authority to order the DOJ to end its case and fire Smith. The prosecutor’s second case against Trump has already been dismissed after a Trump-appointed judge found that Smith was improperly appointed by U.S. Attorney General Merrick Garland.

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