Jack Smith’s indictment still tells a big story, writes Carol Lam. With the limited time left on the clock, his biggest challenge will be telling that story to a jury as quickly as he can.
Smith and his team will endeavor to tell the story laid out in the indictment. But, after the government’s opening statement, that story has to be told through live witness testimony or reliable documents . In contrast, the House Jan. 6 committee, which had first crack at many of the witnesses, was not conducting a criminal trial and did not have to comply with the rules of evidence and criminal procedure.
The Constitution affords criminal prosecutors no such luxuries. Government witnesses in Trump’s criminal trials will have to testify live. They will be subject to cross-examination; this is Trump’s right under the Sixth Amendment to confront the witnesses against him. And, for reasons of efficiency, trial judges expect witnesses to testify in a single session about everything relevant to the trial.
A few witnesses may be called for more limited purposes. Every piece of documentary evidence — an email, a text, a letter, a memo, an electoral certification — has to be authenticated by a live witness before it can be admitted into evidence and shown to the jury. None of these evidentiary requirements will stymie the special counsel’s team, of course — rules of evidence and procedure are part and parcel of criminal trials. Trial attorneys are also prepared to expect the unexpected, such as jurors who fall ill, witnesses who fail to appear, midtrial discovery disputes, broken copy machines and courthouse power outages.
It also seems like the special counsel has pulled every lever in his control to narrow and simplify the trial — for example, by indicting only Trump and not his six alleged co-conspirators. But Jack Smith’s indictment still tells a big story, about Donald Trump’s desperate and wide-ranging attempt to overturn the results of a presidential election.
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