There’s an old saying that lawyers shouldn’t ask questions they don’t know the answers to. This wisdom often emerges during cross-examination when a witness takes the lawyer into uncharted territory. But at least that’s true for questions that lawyers prepare in advance.
So it was odd that during Jack Smith’s congressional testimony on Thursday, Rep. Ben Klain, R-Va., asked Smith what appeared to be a prepared question about Smith’s gag order against Donald Trump in the federal election interference case. “The reality is that you can’t articulate the harm in the real world,” Klain, whose House resume shows he previously worked as an attorney, asked the former special prosecutor. [that] Giving the federal government the power to silence him as a presidential candidate makes sense, right? “
This is a strange question because U.S. District Judge Tanya Chutkan once indeed Smith filed a motion to limit speech against people involved in the proceedings. The judge wrote: “The undisputed testimony adduced by the government indicates that when defendant [Trump] Public attacks on individuals, including matters relevant to this case, resulting in those individuals being threatened and harassed. She added that the defense’s argument that “no restrictions could be placed on the defendant’s speech because he was running a political campaign” was untenable.
When Smith pointed out to Klain that prosecutors don’t have to wait until someone is harmed to file such a motion, the Republican initially responded “actually,” then hesitated before deciding: “There are limitations to the gag order, right?”
He was apparently referring to the fact that an appeals court upheld Chutkan’s order while narrowing its scope. Smith’s response, however, suggests that narrowing the scope doesn’t seem to help Klein’s point of trying. Smith stressed that the appeals court “absolutely agreed that it was well-founded, that Donald Trump’s threats against witnesses were real and that we have a duty to protect them.” He said Klain “was correct, and the appeals court narrowed the scope of the order so that it covered the witnesses, the court staff, the judge and my staff. The difference is, it no longer covers me — and I’m happy with that.”
At this point, one might assume that Klein would move on because it’s unclear how this makes Smith look bad. In fact, it served primarily as a platform to publicize the fact that multiple courts recognized Trump’s threatening behavior while giving Smith a chance to appear selfless in the process.
But Klein continued down an odd path. He then asked Smith if there was evidence that Trump’s comments intimidated witnesses or prevented them from coming forward. Smith responded that he had evidence that Trump said: “If you come after me, I’ll come after you”; that Trump “suggested the death of a witness”; and that the court “found that such statements not only deterred witnesses who came forward, but also deterred witnesses who had not yet come forward.”
At this point, Klein must have switched to another line of inquiry, or given up his time entirely, right?
on the contrary. He repeatedly stressed whether Smith could identify those who did not come forward because of Trump’s threats.
Putting aside the impossibility of proving a negative, Klein’s question prompted Smith to respond: “Prosecutors have no duty to wait until someone is killed before taking action to protect the proceedings.”
So there we have it. The natural progression of the politician’s chosen line of inquiry led witnesses to reiterate to the nation that there were legitimate concerns that the Republican leader’s comments could lead to deaths.
Thursday’s hearing reflected that Republicans didn’t have much cooperation in taking shots at Smith, but he may not mind that it was something they came up with on purpose.
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