Former President Donald Trump is "justified" in saying that a damaging report from special counsel Jack Smith shouldn't have been released with just a few weeks remaining until Election Day, according to retired Judge Andrew Napolitano, a senior judicial analyst for Newsmax.
However, he told "National Report" that the decision to release the secret report fell on the judge in the case, not the Department of Justice itself,
"It was the court's decision to do it," Napolitano said. "If he had been re-indicted within 60 days of Election Day, the Justice Department would have violated its own internal rules."
Still, that rule isn't a federal statute, but the DOJ's own internal rules, "which to their credit, they have pretty much complied with," said Napolitano.
Trump has railed against the report's release, quoting several legal experts who have questioned the timing behind federal Judge Tanya Chutkan's decision.
But Napolitano pointed out that any time controversy surfaces on Trump, that "energizes his base."
"Jack Smith is not stupid," he said. "I don't think he had any choice but to file it at the time that Judge Chutkan ordered it to be filed."
The release also "riles up the liberal media," but if Trump's people formally respond before Election Day, "we're going to be going through all of this at the end of October."
Meanwhile, the Smith report comes after the Supreme Court's ruling on immunity, which forced the special counsel's hand on his case.
"Remember this is the second indictment," Napolitano said. "This indictment was obtained after the Supreme Court's ruling on immunity. The same witnesses, same evidence were tailored to address the ruling."
Chutkan, he added, determined that the government would go first and explain why the new indictment was consistent with the Supreme Court's ruling.
"To Jack Smith's credit, his submission was filed under seal, meaning only the judge and her clerks saw it, and only President Trump and his lawyers saw it," said Napolitano. "If you ask me why she decided to do that, the only thing I can speculate is judges don't care about what's going on outside the courtroom. She has a lifetime appointment. She doesn't want the election to interfere with the way she does things."
There is still time for Trump's team to respond to the release before Election Day, he said.
"Will they do that, regenerating this as a campaign issue, or will they ask for an extension of time which she will, which the judge will probably give them?" he said.
Meanwhile, Napolitano said that even though Trump had insisted he was immune from prosecution, he turned out to be right.
"The Supreme Court went along with him," said Napolitano. "It turned out that much of what the overwhelming majority of what presidents do, they are immune from being prosecuted for after they leave office."
The new indictment zeroes in on what Smith and his team still think that the can prove, arguing that Trump's alleged Jan. 6 actions were those of a private citizen, not a president, he continued.
"Some of the examples are conversations in which the former president would not be able to respond to could just be hearsay," he said.
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