President Donald Trump has thrown the Justice Department’s Jan. 6 Capitol riot prosecutions out the window. But a week before Trump became president, the Department essentially did the same to its own investigation of Trump. The Department’s hand-picked Trump prosecutor, Jack Smith, quit and released a report on the investigation that resulted in the indictment of Trump on four counts involving the 2020 election and Jan. 6. The report did not have a lot of new information in it — Smith has poured out his evidence in filing after filing for more than a year — but it did contain Smith’s assessment that he could have convicted Trump had Trump not won the presidency and is thus no longer subject to federal prosecution.
What else would Smith say? It’s not really a surprise that he would claim, “I coulda won.” But that is not the most striking part of the end of Smith’s investigation.
In retrospect, what stands out about Smith’s prosecution is this: The single guiding fact of his prosecution — that he was working to indict, try, convict and jail Trump before the 2024 election — was something he could never, ever admit. Justice Department guidelines unambiguously forbid such political moves: “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
That is exactly what Smith was doing. Many Democrats, including President Joe Biden himself, were angry that Smith and Attorney General Merrick Garland, who appointed Smith on Nov. 18, 2022, got a slow start in the Trump prosecution. Smith indicted Trump on Aug. 1, 2023, and by the end of the year, the prosecutor was racing to get the former president into a courtroom. But Smith would never say why he was in such a hurry.
In December 2023, Smith and Trump were arguing over Trump’s contention that he was immune from Smith’s prosecution. The matter was set to go to the U.S. Circuit Court of Appeals for the District of Columbia, but all of a sudden, Smith made what he acknowledged was an “extraordinary request.” He asked the Supreme Court to jump into the case, take it away from the Circuit Court, and decide it once and for all. The idea was that the case was headed to the Supreme Court in the end anyway, so why not just eliminate the step at the appeals court and save a lot of time?
But why the rush? Smith would not say. But he was in such a hurry that he simultaneously filed the case with the appeals court so they could be working on it in the event that the Supreme Court turned him down.
And that is what happened. The Supreme Court told Smith he had to go through the regular appeals process, which meant he had to wait for the case to get through the appeals court before it could be appealed to the highest court. As expected, the appeals court ruled against Trump, who of course appealed to the Supreme Court. By February, Smith was urging the Supreme Court to rush, rush, rush to decide the case as quickly as possible.
But why should the Court hurry so much? Again, Smith did not mention the election. Instead, he said that the public had a “compelling interest” of “unique national importance” in putting Trump on trial ASAP. Smith wrote that there would be “serious harm to the government — and to the public — [in] postponing the resolution of the criminal charges.”
All this time, Smith never, ever mentioned the election he was racing to beat. Obviously, if he said, I am trying to put the Republican presidential nominee in jail before the election — that wouldn’t have gone over too well with many Americans. But that is exactly what Smith was trying to do.
People noticed. In February 2024, Jack Goldsmith, a Harvard law professor who opposes Trump, wrote, “This rush violates Justice Department rules. The Supreme Court now faces the question whether it too will be a party to this rush and, if not, how it will avoid it.” Goldsmith continued: “If this were any other defendant than Donald Trump, the rush to trial — which cannot possibly give the Trump legal team adequate time to prepare its defense — would be deemed wildly unfair. Smith’s timing decisions clearly have a ‘purpose of affecting’ the presidential election, at least in the sense of wanting the American people to have the benefit of his evidence and the jury’s verdict before voting in November.”
In the end, Smith failed all around. He ran out of time. He was not able to put Trump on trial, and then — worst-case scenario for the prosecutor — the defendant was elected president of the United States. The case is over.
But Americans learned something from the man the Justice Department chose to pursue President Biden’s political opponent. They learned that the prosecutor will never, ever admit what he is doing, even if everyone can see it, plain as day. Americans knew what Jack Smith, cheered on by Democrats and their allies in the media, was trying to accomplish, and a winning margin of the voters put an end to it on Election Day.
This content originally appeared on the Washington Examiner at washingtonexaminer.com/opinion/3287023/jack-smith-the-prosecutor-who-would-never-admit-what-he-was-doing/.
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