Trump lawyer barreling toward lifetime bench seat despite 'disturbing' red flags: experts
One of Donald Trump's personal lawyers in the E. Jean Carroll case is days away from a lifetime seat on a powerful federal appeals court, and legal experts say his written confirmation responses are riddled with "disturbing" red flags that can't be ignored.
Justin D. Smith serves as the counsel of record in Trump v. Carroll, where the president has asked the Supreme Court to overturn the civil judgment that found him liable for sexual abuse and defamation of Carroll. Trump has consistently denied Carroll's allegations, calling them a "hoax" and "politically motivated." He has continued to appeal both civil verdicts.
Smith was nominated by Trump as an "America First Fighter" in February to serve as a judge for the Eighth Circuit Court of Appeals in St. Louis. The Senate advanced Smith by a unanimous consent agreement on Thursday and is set to vote on Monday.
But Smith’s written responses to the Senate Judiciary Committee’s questions are “disturbing” and present “a whole host of red flags,” said Nora Demleitner, a legal scholar and former president of St. John's College in Annapolis, Maryland.
Notably, Smith continues to misrepresent details about Carroll’s case relating to a “Law & Order: Special Victims Unit” episode in his responses to questions from Sen. Dick Durbin (D-IL), ranking member of the Senate Judiciary Committee.
That includes misattributing to Carroll a quote from Trump’s former lawyer Joe Tacopina about an “amazing coincidence” involving a less-than-one-minute plot point from the “Law & Order” episode.
Smith's cert petition to the Supreme Court attributes the phrase "amazing coincidence" to Carroll herself — language Carroll never used.
The phrase was coined by Tacopina, Trump's lawyer at the time, during cross-examination. Carroll used "amazing" to praise the "Law & Order" writers for "keying in to the psyche of their viewers." When Tacopina rephrased her response as "amazing coincidence," Carroll pointedly substituted "astonishing" and immediately denied basing her allegation on the show.
Durbin asked Smith about how he “misrepresented” the details of a “Law & Order” episode in his written questions, which gave Smith “a chance to clear the record,” said Harold Krent, law professor and interim dean at the Chicago-Kent College of Law.
“The fact that he would have a misstatement again would be either he's very lazy, stubborn or very careless — or it's material,” Krent said.
Since Smith likely wasn’t under oath answering the Senate Judiciary questions, misstatements in the responses wouldn’t be perjury, but “it would be considered a false statement to Congress if he would ever be investigated and charged with that,” Krent said.
Lawyers can also “get punished under attorney disciplinary rules if you exaggerate too much,” Krent said.
“If you flat out lie, then it is presumably some kind of false statement to an official authority, almost never prosecuted,” Krent said.
The Trump administration “is not going to investigate [Smith], but a subsequent administration could investigate and have to decide whether that was a material misstatement or again just a careless or maddening exaggeration.”
Instead, the Trump administration announced investigations related to the case last month, looking into whether Carroll herself committed perjury, along with investigations into the nonprofit of Democratic billionaire and LinkedIn co-founder Reid Hoffman, who helped fund Carroll’s litigation against Trump.
‘So much lying’
The “Law & Order: SVU” episode called “Theatre Tricks” discusses a consensual “roleplay” with a New York judge and a woman “that took place in the dressing room at Bergdorf’s while she was trying on lingerie,” according to the episode viewed by Raw Story.
Smith’s certiorari petition to the Supreme Court incorrectly describes the episode where “a business mogul fantasizes about raping a victim in a Bergdorf Goodman dressing room '[w]hile she was trying on lingerie.'”
Carroll accused Trump of sexually assaulting her in a dressing room at the Bergdorf Goodman department store in the 1990s. Carroll testified at trial that she had not seen the episode and did not make up the allegation based on the show.
A federal jury found Trump liable for sexual abuse and defamation in May 2023, awarding Carroll $5 million. In January 2024, a second jury found Trump liable for $83.3 million in damages for Carroll’s defamation claims.
The inaccuracies are not likely to rise to the level of stopping Smith’s confirmation, Krent and Demleitner agreed.
“We've seen so much lying — I think perjury — by officials and the administration, and this just doesn't seem to be of the same caliber,” Krent said.
Even the Supreme Court justices themselves are “not quoting accurately anymore,” Demleitner said. Justice Samuel Alito recently came under fire for citing a misleading brief in the Louisiana v. Callais decision, which gutted Section 2 of the Voting Rights Act.
“There'll be enough of an argument for a GOP senator to make to confirm him, despite those misrepresentations,” Demleitner said.
Lori A. Ringhand, a professor at the University of Georgia School of Law, has authored several books about judicial confirmations.
“Lawyers sitting before the Senate Judiciary Committee are usually pretty careful about their words and good at walking a fine line that prevents outright lying. Instead, they hedge, they add fudge words, or they answer a slightly different question than they were asked,” Ringhand told Raw Story via email.
‘Truly disturbing’
Demleitner said Smith’s impending confirmation is “really troublesome” for his other written responses to Senate Judiciary questions.
When asked if Trump lost the 2020 election, Smith responded by saying President Joe Biden was certified as the winner. The topic of the election was a contentious point in Smith’s hearing last month, where he would not answer the same yes-or-no question.
“The 2020 election question should generally be a red flag to everybody. I think these nominees apparently are trying to strike a balance between staying in the good favor and graces of the person who nominated them, the president, and, on the other hand, obviously trying to get confirmed by the Senate, which is a tightrope to run for some of them,” Demleitner said.
Demleitner was also concerned about Smith’s written responses about Supreme Court precedents. In only two cases — the landmark civil rights cases Brown v. Board of Education and Loving v. Virginia — he explicitly said “Yes” that the Supreme Court correctly decided cases.
“I thought it truly disturbing to make that kind of distinction between Supreme Court cases, and also only that kind of the most iconic cases that would never be reconsidered … cases that have become a fabric of our society,” Demleitner said.
Advocacy groups have expressed concerns about Smith’s anti-abortion record, and during the confirmation hearing, Durbin questioned Smith about his involvement in political groups.
Demleitner said Smith’s advocacy to the Supreme Court makes her “worry about the claim of unbiased decision-making.”
“We should all be concerned about these types of lawyers being on the federal bench. I think we've certainly seen a number of Trump nominees turning out to be excellent lawyers [who] really weigh the facts and weigh the law and have ruled against the president as much as in favor of the president or the administration, whenever different questions arose,” she said.
“On the other hand, we have seen some, especially appellate court nominees, who do not seem to understand that they're not the advocates for the government, but instead that they are impartial judges.”
Smith did not immediately respond to Raw Story’s request for comment.
