10/04/2024
Jack Smith’s October Surprise
It’s impossible not to suspect the special counsel’s filing is politically motivated.
Politics hath no fury like a prosecutor scorned, and it appears the American electorate won’t be allowed to forget it. That’s the best read of special counsel Jack Smith’s newly unsealed filing in his criminal case against Donald Trump. Congratulations, Attorney General Merrick Garland: You’ve got your own 2024 “election interference” story line.
Mr. Smith filed the 165-page brief last week, his latest response to an embarrassing defeat at the Supreme Court in July. The justices rapped him for ignoring a weighty question in his Jan. 6 indictment, ruling that a president is entitled to immunity for exercising “core constitutional powers.” That decision requires a pretrial proceeding in which the trial judge sifts which of the allegedly criminal acts count as official, and ultimately ended any prospect of a trial before the election. A sober litigator would have stepped back, allowed the voters to render their judgment on Mr. Trump and his bad behavior, and regroup in November.
Here’s what Mr. Smith did instead. He rushed to file a superseding indictment in August that alleged the same four crimes, taking a minuscule view of core constitutional powers. He then requested the trial judge allow him to file an “oversized” brief—up to 180 pages—laying out the government’s arguments against immunity, and asking her to unseal it. Judge Tanya Chutkan granted the requests, ignoring the Trump legal team’s opposition to a brief that was “quadruple the standard page limits” and that allowed the prosecution “to proffer their untested and biased views to the Court and the public as if they are conclusive.” That brief was made public on Wednesday, 34 days before the election.
Which is the point. You don’t have to be a cynic to suspect Mr. Smith of brass-knuckle politicking. He knows that if Mr. Trump wins in November, both his cases (this one, involving Jan. 6, and the other, involving classified documents) are dead. Ergo Mr. Smith is actively working to undermine a Trump re-election by presenting to the public a bevy of new claims painting the nominee as criminal. Even if that assessment of his motives is unfair—even if he’s the upright legal hero of the left’s description—the timing and nature of his actions provides an inescapable appearance of election interference. That’s why Justice Department policy warns prosecutors to err on the side of restraint when voting draws near.
It’s hard to look at the brief as a considered legal argument. Mr. Smith’s zero-humility prosecutorial approach hasn’t always fared well in court—see the 8-0 Supreme Court reversal of his conviction of former Virginia Gov. Bob McDonnell in 2016. The justices in July tried to spare him further legal loss by spelling out a few things. They explained that while certain presidential acts have absolute immunity, many others (including conversations with a vice president about his duty to oversee the counting of electoral votes) have “presumptive” immunity, and the burden is on the government to rebut that premise. It further warned that prosecutors aren’t allowed to second-guess a president’s motives in official decision making.
Mr. Smith shrugs all this off in his new brief, for instance declaring that the Constitution’s directive that the vice president “shall” “open all the [electoral] certificates” on Jan. 6 is no official duty at all. It’s just a “discrete” thing veeps do. (See, that wasn’t hard. Presumption kaput.) He recategorizes moments in the Oval Office as campaign meetings, declares statements Mr. Trump made as clearly those of a “candidate,” and disregards the possibility that a president might have an interest in the integrity of federal elections at the state level. The message to the Supreme Court: Thanks for that ruling, but whatever.
Mr. Smith has to know that even if Judge Chutkan winks this through, he will have a far harder run before the justices, and even perhaps with the Court of Appeals for the District of Columbia Circuit. So why do it? Again, the assumption must be politics. The brief is a nifty vehicle for new claims of insidious Trump behavior, which the press corps jumped on with dutiful alacrity, ignoring any legal questions: “11 damning details in Jack Smith’s new brief in the Trump election case,” or “Trump ‘resorted to crimes’ to try to keep power in 2020, Jack Smith alleges.” Remember: 30-odd days to an election.
This is manna to Democrats, who are desperate for their Jan. 6 lawfare campaign to dominate the final sprint, to divert voters (finally!) from their (tedious) obsessions with inflation, border chaos or crime. Will Mr. Smith’s assist help? Who knows. Mr. Trump’s indefensible behavior is already well-known.
But that’s beside the point. The damage is done. The brief is out. And if Kamala Harris does win, half the country will point to this filing as a reason—the latest Justice Department “interference” in an election. Mr. Garland must be proud.
