Experts: Smith just got potentially “highly incriminating” evidence — but it could delay indictment

Donald Trump; Jack Smith Photo illustration by Salon/Getty Images

Former NYPD Commissioner Bernie Kerik a close ally of former Trump lawyer Rudy Giuliani who was pardoned by the former president, cut a deal to turn over his findings into supposed 2020 election fraud to special counsel Jack Smith, according to The Daily Beast.

Smith previously subpoenaed the documents, which are related to Kerik’s work as former President Donald Trump’s on-the-ground investigator looking at widely discredited conspiracy theories about voter fraud, according to the report. Kerik’s team refused to turn over the documents, citing attorney-client privilege because he was working on behalf of Trump’s attorney, but Trump himself waived the privilege on Friday and agreed to let him turn over the documents, Kerik lawyer Tim Parlatore told the outlet.

Smith is expected to receive nearly 2,000 pages of documents describing Kerik’s probe.

National security attorney Bradley Moss called the move a “significant gamble by Trump’s legal team” but it’s unclear why he signed the waiver.

Smith’s team is looking at Trump’s decision process as he pushed baseless voter fraud conspiracies while his advisers refuted the allegations.

Parlatore, who previously represented Trump as well, told The Daily Beast that the evidence may end up being exculpatory because it shows the Trump campaign did hear allegations of fraud and engaged in good faith efforts to investigate the claims.

“From the time he received a subpoena from the January 6 Committee, Mr. Kerik has believed that full disclosure is the best policy so that the public can understand how extensive the legal team’s efforts to investigate election fraud were,” Parlatore told the outlet.

But none of Kerik’s efforts found any proof of voter fraud and virtually all of Trump’s post-election legal challenges failed in court.

New York University Law Prof. Ryan Goodman warned that Kerik’s documents “could be highly incriminating,” citing a D.C. bar committee report on Giuliani that found that the documents “do not show any connection” between allegations and “election fraud.”

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Kerik and Giuliani “could not and would not confirm that the information contained in the Kerik documents was true,” the report said, adding that the content is “in many instances facially incredible.”

While Trump’s lawyers could argue that they made a good faith effort, prosecutors can use it to show that the evidence Trump claimed he had was “nothing and unsubstantiated,” former federal prosecutor Elie Honig said on CNN.

“They need to know what’s in those documents,” he said of Smith’s team. “And I think they need to be prepared to counteract those, to say, ‘This is nothing. This is a pile of useless garbage.’ A lot of courts found that, and I think prosecutors have to be ready for that defense.”

Kerik told The Daily Beast that he also agreed to sit down for a formal interview with the feds in mid-August. The outlet noted that the “timing could indicate that Smith isn’t as close to indicting Trump as the former president has recently suggested, but Smith could also conduct the Kerik interview after an indictment.”

Former Watergate prosecutor Jill Wine-Banks agreed that the timeline could be delayed, tweeting that “it may be a long indictment watch.”

Former U.S. Attorney Joyce Vance told MSNBC that it is difficult to gauge Smith’s timeline given that he sent Trump a target letter last week but is still talking to witnesses.

“I think the answer is while we could see an indictment any day, it’s possible that there could be a strategy, for instance, to indict Trump alone and to continue to work on the rest of the case,” Vance said. “That seems a little bit far-fetched to me. This is a case where you want to play everything by the books. You want to treat this the indictment like you would any other case, prepare it against any and all of the defendants you’re looking at.”

Vance added that Smith is reportedly looking to bring a conspiracy charge, which means that “Trump would not be a standalone defendant, he would need some co-defendants.”

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CNN legal analyst Norm Eisen, who served as Democratic counsel during Trump’s first impeachment, disagreed that the evidence would slow down Smith.

“I don’t expect… that this huge trove of documents and this additional testimony is going to slow him down or speed him up,” he said on Monday, “but it’s important and he can use it as he prosecutes the case whenever he may charge.”

Former U.S. Attorney Harry Litman cited Trump’s increasingly aggressive rhetoric about the probe as a sign that an indictment is coming soon.

The “hysteria levels from Trump are hitting the stratosphere because this is one that he would know about,” he told MSNBC. “So, to me, the table is set, Smith is ready to go and that’s what the target letter means, save only you guys coming in or not? And by the way, you can’t take two weeks, you know, come in off the pitch after that. Here’s the indictment.”

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