Things are heating up in Judge Tanya Chutkan’s Washington DC courtroom, where the case of United States of America vs. Donald J. Trump is set for a March 4 trial.
Last Tuesday, jury pre-screening forms landed in District mailboxes as the first step in jury selection begins. By starting the jury selection process now, Chutkan is signaling a prompt start on March 4, making it more difficult for the appellate courts to delay that trial date while they dither over whether the former president has immunity from prosecution. The public is entitled to a speedy trial as is the defendant, and this judge means business.
Also on Tuesday, Special Counsel Jack Smith filed a formal paper in court affording Trump with notice of any similar crimes, wrongs or other bad acts he may have committed that are not part of the indictment, but which the government wants to offer into evidence at trial. Decisions about whether such “similar acts” can be presented to a jury is left to the discretion of the trial judge, and these decisions aren’t reversible unless the judge abuses her discretion.
According to Smith’s filing, Trump is also guilty of the other bad acts of lying about the vote and encouraging violence to get his way, and it was no mistake that a ragtag army stormed the Capitol on January 6 to criminally try to block the election results. He “sent” them, according to Smith, and it was because of him that they were there.
Smith said he will present evidence about Trump historically resorting to threats, racist attacks against his opponents, stifling internal dissent, promoting election interference and stopping the counting of votes.
Section 404(b) of the Federal Rules of Evidence essentially prohibits the use of “evidence of any other crime, wrong, or act … to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” In other words, you can’t introduce evidence that a defendant is a habitual drunkard to show that he was drunk on the day of the accident. It is prejudicial for prosecutors to argue that just because a defendant is of bad character, or committed earlier crimes, he must be guilty of the charges against him now.
But there are exceptions. Evidence of a prior crime, for instance, may be offered to prove “motive, opportunity [to commit the crime], intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” The January 6 assault on the Capitol was not a mistake; it was a deliberate act, consistent with a signature pattern of Trump’s past behavior.
Courts vary as to how they handle “similar act” evidence. In the 1991 William Kennedy Smith date-rape trial, the court excluded such evidence. Smith, a doctor, was JFK’s nephew. The prosecutor offered to prove that Smith date-raped a number of other women. Barring such evidence from consideration, the court held it was a situation where, as the iconic federal appellate Judge Henry Friendly put it, “the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it.”
In the trial of Harvey Weinstein, which ended in conviction, the indictment mentioned only two women, but prosecutors were allowed to pile on, proving that Weinstein assaulted three other women not mentioned in the indictment. The issue of admissibility of the other bad acts is the subject of Weinstein’s appeal.
In his nine-page filing, Smith argued that, “Evidence of the defendant’s post-conspiracy embrace of particularly violent and notorious rioters is admissible to establish the defendant’s motive and intent on January 6 — that he ‘sent’ supporters, including groups like the Proud Boys, whom he knew were angry, and whom he now calls ‘patriots,’ to the Capitol to achieve the criminal objective of obstructing the congressional certification.”
Prosecutors argued that Trump’s baseless claims of election fraud and vote-rigging have been part of his political playbook even before his 2016 election. According to prosecutors, Trump deployed false accusations to dismiss past defeats and undermine future ones, laying the “foundation” for his criminal plan to unlawfully retain power in 2020.
As early as November 2012, the filing said, Trump baselessly tweeted that voting machines had switched votes from that year’s Republican nominee, Mitt Romney, to President Barack Obama. During the 2016 presidential nominating contests, Trump repeatedly and falsely claimed there was “large-scale fraud.”
After losing the Iowa caucuses that February, Trump posted on Twitter that Sen. Ted Cruz “didn’t win Iowa, he illegally stole it.” If Trump wasn’t the clear winner by the GOP convention in July, he told CNN, “I think you’d have riots.”
Smith may have some powerful evidence to offer under the “similar acts” heading on the basis that it demonstrates intent or knowledge. But he has to be sure not to wander into the prohibited “propensity” territory, which could raise the eyebrows of any appellate judge should Trump be convicted.
Prosecutors must give a defendant “reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it.” The notice serves to have Smith advise Trump of what he believes is the permissible purpose of offering 404(b) evidence. As might be expected, a Trump spokesman criticized the government for “trying to include claims that weren’t anywhere to be found” in the indictment.
Trump is accused of plotting to defraud the federal election process, obstructing Congress’s certification of the vote in the 2021 Capitol attack and depriving Americans of their civil right to have their votes counted. He has pleaded not guilty to the four charges.
Trump wants the trial televised. He views it as just a campaign stop, a vehicle “to display his power.” This would be especially so if the trial begins just before the “Super Tuesday” primary date of March 5, 2024. But, when the trial will really begin, if at all, remains an “awfully iffy question.”
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.