Special Counsel Report on Trump Election Case

January 6, 2025

Page 6

III.

Smith’s Report Violates The Presumption of Innocence

The presumption of innocence is “the undoubted law, axiomatic and elementary.” Coffin v. United

States, 156 U.S. 432, 453 (1895). It is “vital and fundamental” to our Constitutional system, id. at 460,

and “its enforcement lies at the foundation of the administration of our criminal law,” id. at 453; see also

Cool v. United States, 409 U.S. 100, 104 (1972) (holding violation of defendant’s “constitutionally rooted

presumption of innocence” required reversal).

“The presumption serves as a reminder to the jury that the prosecution has the burden of proving

every element of the offense beyond a reasonable doubt,” United States v. Starks, 34 F.4th 1142, 1158

(10th Cir. 2022), and thus, may be “extinguished only upon the jury’s determination that guilt has been

established beyond a reasonable doubt,” Mahorney v. Wallman, 917 F.2d 469, 471 n.2 (10th Cir. 1990)

(emphasis in original) (collecting cases).

Consistent with these bedrock principles, the Justice Manual prohibits prosecutors from publicly

declaring a defendant’s guilt prior to a jury verdict, or otherwise disseminating statements inconsistent

with the presumption of innocence. Justice Manual §§ 1.7.500; 1-7.600; 28 C.F.R. § 600.7(a) (“A Special

Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of

Justice.”). Rather, prosecutors must limit their statements to “[t]he substance of the charge, as contained

in the complaint, indictment, information, or other public documents” and any “release issued before a

finding of guilt should state that the charge is merely an accusation, and the defendant is presumed

innocent until proven guilty.” Justice Manual § 1.7.500. Moreover, “DOJ personnel should refrain from

disclosing” inter alia. “[a]ny opinion as to [a] defendant’s guilt” or any other “[o]bservations about a

defendant’s or party’s character” “except as appropriate in the proceeding or in an announcement after a

finding of guilt.” Justice Manual § 1-7.610 (emphasis added).

These restrictions ensure that the Department’s statements do not “prejudice the rights of a

defendant; or unfairly damage the reputation of a person.” Justice Manual § 1-7.100; see also 32 C.F.R.

§ 776.47 (“Except for statements that are necessary to inform the public of the nature and extent of the

trial counsel’s actions and that serve a legitimate law enforcement purpose, refrain from making

extrajudicial comments that have a substantial likelihood of heightening public condemnation of the

accused.”); D.C. Bar Rule 3.8 (same).

The Draft Report violates every one of these core requirements. Despite Smith’s decision to

dismiss his cases against President Trump, and his complete failure to obtain a “jury’s determination that

guilt has been established beyond a reasonable doubt,” Mahorney, 917 F.2d at 471 n.2 (emphasis in

original), his Draft Report repeatedly, and falsely, claims that President Trump, Carlos De Oliveria,

Waltine Nauta, and others have committed crimes and otherwise engaged in purported “criminal conduct.”

For example, Volume I of the Draft Report falsely asserts, without any jury determination, that President

Trump and others “engaged in an unprecedented criminal effort,” was “the head of the criminal

conspiracies,” and harbored a “criminal design.” Draft Report, Vol. I at 2, 68, 69. These false accusations

of criminality, which Smith again utterly failed to prove in Court, repeat throughout Volume I. See, e.g.,

id. at 3, 52, 60, 64, 67, 88, 108. Likewise, Volume II asserts, without any supporting verdict, “that Mr.

Trump violated multiple federal criminal laws,” and that he and others engaged in “criminal conduct.”

Vol. II at 60, 88; see also, e.g., id. at 89, 121. Moreover, the Draft Report makes these allegations despite

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