Jack Smith's 'lame-brained' failure

I spent much of the past two years following and applauding the efforts of Special Counsel Jack Smith to bring Donald Trump to book. But I am coming around to agreeing with Trump that Smith is a “lame-brain prosecutor” — weak and totally ineffectual.

Trump may have been taking his characteristically exaggerated victory lap, but good prosecutors bring the right charges and make them stick.

To be sure, there are some mitigating excuses for Smith. Attorney General Merrick Garland sent Smith on a kamikaze mission, having wasted almost two years before appointing him on Nov. 18, 2022, less than two years before the 2024 presidential election. Smith arrived late to the party and had little room to turn around. He also had to deal with an ethically challenged Supreme Court, with three Trump-appointed justices who were not likely to do him any favors. But Smith knew all that — or should have known it.

Garland appointed Smith to investigate and prosecute matters related to efforts to interfere with the 2020 presidential election, as well as classified documents found in Trump’s Mar-a-Lago residence. No one has adequately explained why Garland, with his meek, from-the-bottom-up approach, waited so long to appoint a special counsel — or even why he needed to appoint a special counsel in the first place. Still, all in all, Smith could have done better before hitting the wall of Trump’s reelection.

Throttled by his inability to try Trump in time, Smith had to be content with a hit-and-run 137-page report. The report is prefaced by a four-page letter from Smith to Garland, piously citing such luminaries as President John Adams, Justice Robert Jackson and Attorney General Edward H. Levi about prosecutorial independence and the rule of law.

Under our constitutional and legal structure, it is all but impossible for the government to prosecute high-ranking political figures from the party opposed to the one in power without the appearance of biased political prosecution, and all the special counsels in the world will not wash away the accusation of partisan bias if the body politic is prepared to believe it.

Smith’s letter cited John Adams for the “fundamental value of our democracy that we exist as ‘a government of laws, and not of men.’” But our prized “rule of law” must inevitably be administered by men and women who are subject to being undermined by political attack.

While Trump tried from the get-go to brand Smith as a tool of his political adversary, President Joe Biden, Smith in his letter stressed that “to all who know me well, the claim from Mr. Trump that my decisions as a prosecutor were influenced or directed by the Biden administration or other political actors is, in a word, laughable.” The irony is that the same could apply equally to Garland or any official of the Justice Department. So why did we need a special counsel in the first place?

The report determines that “substantial evidence demonstrates that Trump ... engaged in an unprecedented criminal effort to overturn the legitimate results of the election in order to retain power.” It concludes that, but for Trump’s election and imminent return to the presidency, the “admissible evidence was sufficient to obtain and sustain a conviction at trial.” In short, Smith laments that Trump would have been convicted by a jury.

“The lady doth protest too much, methinks.”

Smith’s report fails to explain adequately why he did not bring charges against Trump for insurrection under 18 USC Section 2383, noting lamely that such cases are rare and definitions of “insurrection” are unclear, raising concerns that such a charge would endanger the larger case. How so? Section 2383 criminalizes assisting or engaging in any rebellion or insurrection against the authority of the U.S. Smith concedes there are “reasonable arguments” to conclude Trump did just that.

Importantly, Section 2383 carries with it a penalty not present in any of the other federal criminal statutes Smith used to bring charges against Trump. It is the only arrow in the prosecutorial quiver that provides for disqualification from “holding any office under the United States.” Because of this penalty, Smith may have been able to move more quickly for a trial on this charge before the election, since Trump’s guilt of insurrection might have brought about his disqualification. All the evidence was there.

Smith overlooks that a Colorado trial court found as a fact that Trump “actively primed the anger of his extremist supporters,” and “acted with the specific intent to incite political violence and direct it at the Capitol.” This finding of insurrection was affirmed or assumed all the way to the U.S. Supreme Court.

The report says Smith “determined that there were reasonable arguments to be made that Mr. Trump’s Ellipse Speech incited the violence at the Capitol on January 6 and could satisfy the Supreme Court’s standard for ‘incitement,’ ... particularly when the speech is viewed in the context of Mr. Trump’s lengthy and deceitful voter-fraud narrative that came before it.”

Smith found the “evidence established that the violence was foreseeable, that he caused it, that it was beneficial to his plan to interfere with the certification, and that when it occurred, he made a conscious choice not to stop it and instead to leverage it for more delay.”

Smith thus gave up the ghost on insurrection. “In light of the other powerful charges available” and the “unwarranted litigation risk” of charging Trump with inciting an insurrection, he decided not to level that charge.

What lame-brained nonsense!

Smith assessed that the admissible evidence was sufficient to obtain and sustain a conviction. But there was to be no trial, even though conviction was a virtual certainty — but for Trump’s election and imminent return to the presidency.

The report is not even an indictment; it is only a footnote to history. But the report says something sad about Smith. Effective prosecutors don’t throw in the towel so readily. Only lame-brained ones do.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.

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