Another major factual revelation by Special Counsel Jack Smith, another attempt to discredit him without ever addressing the new facts. But this time the attacks come not just from the defendant, but from lawyers who provide former president Donald Trump an undeserved veneer of credibility.
The critics take aim at the mere fact that in the DC election subversion criminal case, Smith filed a legal brief which, with court approval, was made public. That brief addressed the Supreme Court’s decision in Trump’s favor that explicitly required the district court to consider the allegations in the case to determine what proof was not subject to its newly-minted presidential immunity doctrine.
What makes the latest attacks on Smith especially rich is the contention that the special counsel has contributed “to the sharp decline in distrust[sic] of our justice institutions” – when it is former President Donald Trump who has made a mockery of our justice system and inability to do what so many other countries have done successfully: try our highest political leaders. And it is the Trump enablers who hasten that “sharp decline” by levying baseless accusations that undermine the bona fides of the special counsel and the Department of Justice. Launching spurious, incomplete, and misleading missives harm the very institution – and the rule of law – they claim to defend.
Consider what happened in the past few days after Judge Tanya Chutkan unsealed the Justice Department’s brief that includes “bombshell after bombshell” of detailed factual allegations about Trump’s efforts to overturn the results of the last presidential election.
Trump has not offered any counter proof. He has affirmatively avoided doing so. The briefing schedule called for him to respond to the submission before the election, but he sought and was granted an extension by Judge Chutkan so he would not have to contend with the government’s documented facts before Nov. 5.
Far from addressing the facts, or Trump’s continued efforts to avoid addressing them (months and months ago, for instance he claimed to have dispositive evidence of election fraud, but we remain to this day unenlightened), the critics chose a different path. They parroted Trump’s claim of “election interference” and expressed outrage at the prosecutor, not at the documented criminal scheme to rob tens of millions of Americans of their vote.
What is Smith’s claimed misdeed? Smith stands falsely accused of violating a Justice Department “rule” prohibiting prosecutors from taking certain overt actions within 60 days of an election. The former president has asserted, on social media and in court filings, that the Department’s rule meant that he could not be tried in the runup to an election – i.e., now that he has obtained the Supreme Court’s acquiescence in inordinate delay, he is in a safe space where no public proceedings at all can continue. Piled on top of that accusation is a demand, by Jack Goldsmith in The New York Times, that the Department give a public explanation of Smith’s supposedly aberrant behavior in seeking a speedy trial.
This is all flat wrong.
The so-called 60 day rule is inapplicable, as the Attorney General of the United States already explained in a televised interview at the beginning of this year. And in case anyone missed that, the special counsel’s office explained at further length in open court that the Justice Department’s internal so-called 60-day rule “does not apply to cases that have already been charged, that are being litigated.” What’s more, the special counsel’s office told that federal judge (Judge Aileen Cannon – who inappropriately injected herself into the inquiry about compliance with an unenforceable DOJ internal policy) that they “did a consult with the Public Integrity Section” of the Department, which oversees the policy and that they were in “full compliance.” They pointed out that the special counsel’s office itself has two former chiefs of the Public Integrity Section. (Goldsmith shows no awareness that Garland and the special counsel have provided these public explanations, despite his piece being titled “Jack Smith Owes Us an Explanation” and his demanding an explanation throughout.)
And as for the Justice Department Manual (the internal Department rules for its personnel), it requires the obvious. No decision, at any time, should be made with the purpose of affecting an election.
There’s simply no facts to warrant the conclusion that Smith and other Justice Department officials have violated that provision. Rather, they have complied with Judge Chutkan’s repeated admonition that the pretrial briefings, as she reminded the parties last month, must go ahead without being suspended or delayed by the campaign calendar. And, even aside from its obligation to comply with a court’s legitimate view of how she will manage her docket, the prosecution has every reason to vindicate the public’s right to a speedy trial, which to date has been thwarted by Trump.
Goldsmith nonetheless spouts the myth that the special counsel “never explained the need for speed” in his arguments before the Supreme Court on the D.C. election subversion case. This ignores hard facts. As we have written, “the special counsel’s briefs in the D.C. case are replete with references to this well-settled case law” that the public has an interest in a speedy trial. Those references include the special counsel’s quoting a landmark unanimous Supreme Court opinion, in which Justice Samuel Alito explained that the Speedy Trial Act “was designed not just to benefit defendants but also to serve the public interest.”
Smith’s own actions were tempered and involved no rush to trial or to pretrial briefings after the Supreme Court’s belated immunity decision, which sent the case back to Judge Chutkan for factual assessment and ruling. When it came to proposing a schedule for filing the DOJ’s most recent brief in the DC case, Smith did not rush to file, or seek a so-called “mini-trial” in advance of the election (indeed prosecutors told the judge one was not needed at this time). Instead, he asked the court for a few weeks extension to submit a proposal as to how to proceed. He explained that he needed to complete “consultation with other Department of Justice components” to ensure compliance with special counsel regulations and was awaiting “the Government” finalizing “its position on the most appropriate schedule for the parties to brief issues related to the [Supreme Court’s immunity] decision.” This was, by all knowledgeable accounts, a fully vetted Justice Department decision. What’s more, in writing and in a hearing before the judge on Sept. 5, the special counsel’s team did not propose submitting their brief before the election, but left the decision of timing completely in the hands of the court. (“What we have said is that we leave the specific date to the Court’s discretion,” the prosecutors stated.)
Goldsmith makes no note of any of this – not the judge’s repeated admonitions to proceed without delays caused by the election (statements that government lawyers can’t afford to ignore), not the case law setting out the public’s interest in a speedy trial, not Smith’s actual position about the filings, not the consultation with the Department’s Public Integrity Section. And, ignoring all this, Goldsmith does not explain how he has nevertheless, in effect, divined that Smith’s true “purpose” must have been to violate the DOJ Manual.
The critics’ further claim that the DC case must now come to a halt is an easily debunked fallacy, given how the DOJ 60-day rule works. Indeed, another of the Smith critics previously described the rule accurately, but now flips that understanding with no explanation for his 180. Goldsmith has done similarly: in late Sept. 2020 saying that the Attorney General has “enormous discretion” to abandon any internal DOJ “rule.” But that was when the derogatory information would have been released by Attorney General Bill Barr, whose actions Goldsmith’s words supported at the time. Goldsmith now argues that it is “crucial” that the Garland Justice Department “convince the public that it was complying with” the rule. This may help explain why, despite his focus on DOJ actions, Goldsmith’s critique includes a strained sideswipe of Vice President Kamala Harris. He criticizes her for describing her opponent (accurately) in the presidential debate as “someone who has been prosecuted for national security crimes” and election interference. Goldsmith ends his piece by then placing Harris right alongside Smith as “near the top of the list” for contributing to the “sharp decline in trust of our justice institutions.”
In short, it takes a conspiracy theory vast in scope at the Justice Department, and well beyond Smith himself, to come to the critics’ conclusions.
It also takes losing sight of the bigger picture.