Unlike the rabidly anti-Trump MSNBC legal analyst Glenn Kirschner, whose legal instincts would be in line with a Keith Olbermann, CNN's senior legal analyst Elie Honig sometimes tosses out curve balls at variance with the liberal narrative usually taken by his network. One such occasion was on Saturday morning during Honig's appearance on Smerconish. He told the host that Jack Smith appeared to be in violation of the Department Of Justice policy that prosecutors should not select the timing of any action with an election in mind.
Here is the dilemma on that topic that Attorney General Merrick Garland is facing according to Michael Smerconish:
MICHAEL SMERCONISH: So here's the question for Merrick Garland, does the policy which avoids an appearance of politics in investigative steps or criminal charges extend to actually trying a case? Arguably the investigation is over, the criminal charges. They've already been filed so prosecuting Trump in the lead up to the presidential election would not technically run afoul of those DOJ docs, like Jay Bratt said yesterday in the Mar-a-Lago case.
Nevertheless, does Merrick Garland want the perception of putting a former president on trial at a time when he will be his party's nominee? If Garland is hesitant to do so, then where's the line for when it becomes inappropriate to try Trump? Is it 60 days before an election? Is it 90 days before an election? There's no precedent for this situation. No rulebook governs this particular scenario.
Truly, we are in uncharted waters. And Merrick Garland is holding a lot of the cards. It all leads me to today's poll question today at smerconish.com. Go and vote on this. Is it appropriate for DOJ to try Trump in the fall of 2024?
Joining me now is Elie Honig, CNN Senior Legal Analyst, former federal prosecutor.
And if many CNN viewers are counting Honig to agree that it is appropriate for the DOJ to try Trump in the weeks leading up to the election, they are about to be hit by a curve ball.
ELIE HONIG: So, Jack Smith's team was asked that exact question, as you discussed earlier, in court yesterday. And they sort of threaded the needle and said, well, no, because we interpret that rule that we don't do things close to the election. That only applies to investigative steps. And the right, it applies to, for example, you would never do a search warrant on a candidate 12 days before an election. You would never indict a candidate 14 days before an election.
But if you look elsewhere, if you look at the actual justice manual, now, this is essentially the internal Bible for DOJ. We all have them printed out on our desks. There's a provision in there that says, prosecutors should never select the timing of any action. Let me say that, again, any action with the election in mind, with the timing of the election in mind.
And it's hard for me to square that with Jack Smith making decisions, asking for trial, asking for everything to be mega-expedited, because even though we won't say it, I don't think anyone would disagree that what's motivating him is the Election Day. So I do think that that violates DOJ his own internal manual.
What Honig said makes not just sense but common sense. If prosecutors should never select any action with the timing of the election in mind that would include not just the investigative steps and the indictment but the actual trial as well.
That's not to say this hasn't happened in recent history. Iran-Contra special prosecutor Lawrence Walsh re-indicted Reagan-era defense secretary Caspar Weinberger on the Friday night before the 1992 election. Democrats complain about FBI director Jim Comey's October announcement he was probing new leads in the Hillary Clinton email scandal in 2016.
All this may explain why voters seem so unimpressed by the rash of Democrat indictments against Donald Trump.
