Stefanik Complaint Against Jack Smith

April 30, 2024
Jeffrey Ragsdale, Counsel

Office of Professional Responsibility
United States Department of Justice
950 Pennsylvania Avenue, N.W., Suite 3266
Washington, D.C. 20530-0001
Re: Complaint of Election Interference Against Biden Special Counsel Jack Smith
Mr. Ragsdale:
I write today to request an ethics investigation of Biden Justice Department special
counsel Jack Smith for abusing the resources of the federal government to unlawfully interfere
with the 2024 presidential election. Jack Smith’s multiple attempts to rush to trial the federal
January 6 case against President Trump violated long-standing, explicit Justice Department
th
policy. Further, Jack Smith’s repeated violations of the United States District Court for the
District of Columbia’s stay of proceedings are a lawless breach of trial ethics and lawyerly
conduct. Jack Smith’s actions brought disrepute to the Justice Department and the federal
government as a whole, and he should face discipline appropriately.
ATTEMPTING TO EXPEDITE TRIAL IN VIOLATION OF DOJ POLICY
In June 2023, Biden special counsel Jack Smith obtained an indictment against President
Donald J. Trump. The indictment charges President Trump with several offenses in relation to
the Capitol riot of January 6, 2021. President Trump is now the presumptive Republican nominee
for President, having won enough delegates to secure the nomination on March 12, 2024. As we
will demonstrate, Biden special counsel Jack Smith is attempting to expedite the trial in order to
influence the general election in November. This conduct violates Section 9-85.500 of DOJ’s
Justice Manual to which Jack Smith is bound.1
Section 9-85.500 dictates that “[f]ederal prosecutors . . . may never select the timing of
any action . . . for the purpose of affecting any election, or for the purpose of giving an advantage
or disadvantage to any candidate or political party.” Jack Smith first violated this rule when–in
August 2023–he petitioned the District Court for a January 2, 2024, trial date. There exist
approximately thirteen million pages of discovery for President Trump to review, plus thousands
of hours of camera footage. Prosecutors bringing a case of this complexity–with so many
consequential and novel legal issues to sort out–would normally never seek to bring it to trial
within five months. The only reason to push for such an early trial date was to work to get the
case tried before the November election, and the Justice Department Manual clearly forbids Jack
Smith from taking any action on that basis.
Biden special counsel Jack Smith next violated this Justice Department provision when
he petitioned the Supreme Court of the United States for a writ of certiorari before judgment in
1
See 28 C.F.R. § 600.7(a).
December.2 This extraordinary petition sought to bypass the normal appellate process, which
involves a decision by a Court of Appeals panel and, possibly, review by the en banc court. Jack
Smith asserted that it was “imperative” for the Supreme Court to grant his highly unusual
request,3 but on December 22, 2023, the Supreme Court denied Jack Smith’s petition.
That Jack Smith was solely motivated by the desire to interfere in the November election
was effectively proven two months later. In February, President Trump petitioned for certiorari
on the issue of presidential criminal immunity for official acts.4 Biden special counsel Jack
Smith—having supported certiorari just two months earlier—now opposed certiorari. Jack Smith
effectively repudiated his own arguments from two months earlier, with little explanation for his
about-face other than his naked assertion that “[t]he nation has a compelling interest in the
prompt resolution of this case.”5 Opp. To Pet. For Cert. at 34-35. Aside from the upcoming
election, what “compelling interest” does the public have in the prompt resolution of this case?
Why should this interest—based on an unstated reason—override the due process rights of a
criminal defendant?
Moreover, if the case were so important that Jack Smith believed the Supreme Court
should take the extraordinary step of granting certiorari before the Court of Appeals could weigh
in, how could he now argue that the case was not important enough for even a normal grant of
certiorari? The only way to reconcile Jack Smith’s filings is to recognize that his obvious goal
was not to seek justice and the neutral application of the law, but rather to get President Trump–
and get him before November.
Smith and his team have claimed that they are not in violation of the Justice Manual
because, he argues, the relevant provision applies only to the timing of the indictment itself, and
not to cases that are already being litigated.6 This is an implausible reading; Justice Manual
section 9-85.500 applies to “any action” by “federal prosecutors and agents,” “including” (but
not limited to) “investigative steps, criminal charges, or statements.” On its face, section 9-
85.500 also applies to the “actions” by the Special Counsel undertaken in the course of
prosecuting this case against President Trump, including the attempt to obtain a preposterously
early trial date, as well as the filing of an extraordinary request for certiorari for judgment.
Jack Smith has not talked about the election in his filings because it is an obviously
improper reason to expedite President Trump’s trial. Biden special counsel Jack Smith’s actions,
however, leave no doubt that the election is driving his timing decisions. No other plausible
reason exists for why he is rushing this case against a criminal defendant in a manner
inconsistent with the Justice Department’s usual practice.
VIOLATIONS OF COURT-ORDERED STAY
Biden special counsel Jack Smith also repeatedly and deliberately violated the District
Court’s stay of proceedings, in violation of D.C. Rule of Professional Conduct 3.4(c). When
President Trump appealed the District Court’s interlocutory order denying his motion to dismiss
2
United States v. Trump, No. 23-624 (U.S. filed Dec. 11, 2023) (“Petition for Cert. Before Judgment”).
3
Petition for Cert. Before Judgment at 2.
4
Pet. For Cert., Trump v. United States, No. 23-939 (U.S. filed Feb. 12, 2024).
5
Opp. To Pet. For Cert., Trump v. United States, No. 23A745 at 34-35 (U.S. filed Feb. 14, 2024).
6
Transcript of Scheduling Conference and Motions at 80-81, United States v. Trump (S.D. Fla. Mar. 1, 2024) (No.
23-cr-80101).
the case on presidential immunity grounds, the District Court issued a stay of proceedings as
required by unambiguous Supreme Court precedent.7 Thus, the District Court rightly stayed “any
further proceedings that would move this case towards trial or impose additional burdens of
litigation on Defendant.”8
But Jack Smith repeatedly flouted the District Court’s order. First, Jack Smith served
nearly 4,000 pages of discovery on President Trump.9 Then, after the Supreme Court rejected his
petition for certiorari before judgment, Jack Smith filed a motion in limine in District Court.10
Jack Smith did so despite representing to the Supreme Court in his certiorari petition that “the
case is now on hold” in District Court.11 If the Special Counsel wants to speak out of both sides
of his mouth, he should face the disciplinary consequences for those misrepresentations.
D.C. Rule of Professional Conduct 3.4(c) prohibits counsel from “[k]nowingly
disobey[ing] an obligation under the rules of a tribunal.”12 Jack Smith’s refusal to abide by the
District Court’s stay violates this rule. Moreover, Jack Smith’s assertions to the Supreme Court
that the lower court matters were frozen pending the D.C. Circuit’s disposition of President
Trump’s appeal serve as compelling evidence that Jack Smith knew his District Court filings
violated the stay order. This conduct strongly supports the opening of an ethics investigation to
hold Biden special counsel Jack Smith accountable for prosecutorial misconduct.
Jack Smith emphatically said that “no one in this country . . . is above the law.”13 If that
is true, then he should be open to, and welcome, an ethics investigation into conduct that, on its
face, implicates potential violations of DOJ policy and multiple rules of professional conduct.
Biden special counsel Jack Smith’s highly unusual and clearly improper attempts to expedite
trial, and his blatant violation of District Court orders, evidence his partisan attempt to influence
the results of the 2024 presidential election.
Thus, your office should open an investigation into Biden special counsel Jack Smith’s
apparent violations of Justice Department standards and his other ethical duties, in Biden special
counsel Jack Smith’s obvious attempt to politicize his criminal prosecution and unlawfully
interfere in the 2024 presidential election.
Sincerely,
Elise M. Stefanik
7
See Coinbase, Inc. v. Bielski, 599 U.S. 736, 739–44 (2023).
8
United States v. Trump, No. 23-257, 2023 WL 8615775, at *1 (D.D.C. Dec. 13, 2023).
9
President Trump’s Motion for Order to Show Cause Why Prosecutors Should Not Be Held in Contempt at 4,
Trump, No. 23-257 (Jan. 4, 2024).
10
Id. at 1.
11
Reply Brief for Petitioner, supra note 7, at 5.
12
D.C. RPC 3.4(c).
13
Answering Brief at 12, United States v. Trump, No. 23-3228 (Dec. 30, 2023).

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April 30, 2024

Jeffrey Ragsdale, Counsel

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