By allowing the federal government to bolster its "election interference" case against former President Donald Trump before his lawyers can move to dismiss, Judge Tanya Chutkan is giving the Justice Department an Election Day advantage, retired New Jersey Superior Court Judge Andrew Napolitano suggested.
Napolitano, appearing on Newsmax's "Wake Up America," said Chutkan allowed the prosecutors to lay out the evidence against Trump "in an unusual manner" so the public could hear the government's case before Nov. 5.
"So, they're both in court and the issue is a brand new indictment called a superseding indictment issued by a new grand jury based on the Supreme Court's decision on immunity," Napolitano said. "So, the old indictment charged Donald Trump with doing things as president. The Supreme Court says you can't do that. He's the president, but only personal, non-official acts can form the basis for a criminal prosecution of an ex-president. So, the DOJ [Department of Justice] gets a new indictment, they come in the courtroom with a new indictment. The judge says, 'What do you want to do?' Defense counsel says, 'We want to dismiss the indictment.' The prosecutors say, 'We want to reinforce the indictment.'
"In the real world, defense counsel would go first, and they would make a motion to dismiss," Napolitano continued. "This is not the real world because the judge is letting the government go first. So, they are defending the indictment before it's attacked. Now, why is she doing that? Because by allowing the government to go first, they will lay out the evidence against Donald Trump before Election Day. If the defense went first, the government's brief wouldn't be due until after Election Day. It's one of the oddest things I have seen to allow the government to defend its behavior before the defendant is attacking its behavior."
Last week, special counsel Jack Smith filed a new indictment against Trump for alleged efforts to alter the 2020 presidential election results that retains the same criminal charges but narrows the allegations following the Supreme Court ruling that established broad immunity for former presidents.
In a 6-3 ruling along ideological lines, the high court ruled on July 1 that Trump cannot be prosecuted for actions he took as president that fell within his constitutional powers. The new indictment Smith issued cuts a section dealing with Trump's interactions with the Justice Department, as the Supreme Court decision found that such conduct was immune from prosecution.
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