History Has Its Eyes on Jack Smith
History Has Its Eyes on Jack Smith
And the special counsel knows it.
BOTH OF SPECIAL COUNSEL JACK SMITH’S indictments of Donald Trump (or all three, if you want to count separately the superseding indictment in the classified documents case) have been so-called speaking indictments. By contrast with Manhattan District Attorney Alvin Bragg’s rather skimpy filing, which gives little information about what exactly Trump did to violate New York law, Smith’s indictments tell coherent, detailed, even engaging stories about Trump’s pattern of alleged criminality. But these indictments won’t be the final word from Smith.
Smith and his team will present their case in further filings as Trump’s lawyers let loose, and in the courtroom in the months ahead. And after all the cases are done, Smith is required by law to submit a final report to the attorney general. At a minimum, that report has to explain his office’s decisions about whom to prosecute and whom not to prosecute. But given the richness of Smith’s indictments so far, it’s hard to imagine that he’ll file a minimalist report.
Moreover, Smith recognizes that his investigation into the Trump-instigated attempt to overturn the 2020 election isn’t any ordinary case; he understands, as anyone in his position would, that this is a chapter in future history books, the top of his Wikipedia entry, and, in all likelihood, the headline of his future obituary. Even though almost all of the information in his indictments was previously reported either by journalists or the House January 6th Committee, Smith’s inclusion of it in his indictments suggests for the historical record that he can—or at least thinks he can—substantiate it under the strict rules of evidence in the federal courts. And establishing a clear legal record could also aid in the prosecution of other insurrection-related cases, including possibly the prosecutions of the six co-conspirators listed in the new indictment of Trump.
Smith’s words of special thanks to the “many career prosecutors and law-enforcement agents from around the country who have worked on previous January 6th investigations” suggests that he sees his work as part of that larger effort. As a former chief prosecutor of the special court in the Hague for war crimes committed during the Kosovo war, Smith is probably more aware than the average federal prosecutor of the connection between justice and history—and perhaps less reticent to prosecute national leaders.
TO ANTICIPATE WHAT Smith’s office might do for the duration of his investigation, it’s worth contrasting his efforts with those of the previous special counsel investigating Trump, Robert Mueller. The former FBI director faced criticism from some, including at least one of his lieutenants, for timidity in his investigation of Trump. Whether or not that criticism is warranted, there’s no doubt that Mueller faced significant legal obstacles in investigating the then-incumbent president that Smith does not face in investigating the former president.
The first and most obvious difference is that the Department of Justice has a standing rule against indicting a sitting president. Mueller spent about twenty pages of his final report explaining why the presidency wouldn’t have offered Trump unique defenses against charges of obstruction of justice, but never actually brought those charges because, as he (sort of) conceded, it would have violated Justice Department rules. There is no such rule against indicting a former president, hence Smith’s indictments of Trump on multiple felony counts.
The other major advantage Smith has over Mueller is the attorney general, presuming that President Joe Biden and Attorney General Merrick Garland are still in office by the time Smith wraps up his work. (More on that in a moment.) It would be up to Garland whether to publicly release the report and how much of it would need to be redacted, but it would be hard to imagine that Garland would decide to withhold anything (except as relates to classified material that should not be made public). In 2019, in the closing days of the Mueller investigation, the House of Representatives passed a unanimous resolution calling on then-Attorney General Bill Barr to publish the Mueller report.
Barr, of course, did publish the Mueller report, but only after misleading the public about its contents and conclusions. Garland, if he comments about the report at all, is unlikely to do so.
We should not be surprised, then, if, at the conclusion of his investigations, Smith issues a report to Garland that goes beyond the indictments and even beyond what is heard at trial, offering a cogent, evidence-dense account of the efforts to overturn the 2020 election, Trump’s mishandling of classified documents, and any further efforts to obstruct the investigations.
ONE ADDITIONAL DIFFERENCE we can anticipate between the Mueller report and the Smith report: timing. While Trump now faces federal and state felony charges (with more likely on the way), he’s unlikely to see the inside of a jail cell until after the 2024 presidential election. If he were to win that election, he’d be unlikely to see one at all. So when we talk about Smith’s prosecution and the indictments and his eventual report as being important for the public and for history, we should be clear that part of their importance resides in their relevance to voters.
The Mueller report was published on April 18, 2019—too late to make a difference in the 2018 congressional elections and too early to make a difference in the 2020 presidential campaign. There’s no way now to know when Smith will be in a position to file his final report; even though he’s moving quickly, it is hard to see how he could wrap up not only the two Trump cases but also any other prosecutions before November 2024. But the indictments have arrived before primary voters have started casting ballots and, as Dennis Aftergut notes, Trump’s 2024 calendar is crowded with court dates, all of which will make news.
Which means that any voters still undecided going into 2024 will have ample reminders of Trump’s worst qualities, and perhaps of the daily headache of having a narcissistic criminal as president.