When Jack Smith was named special counsel to look into multiple cases against former President Donald Trump, he was painted by the media as an impartial man, “a war crimes prosecutor in The Hague who’d cut his teeth in New York prosecuting state and federal crimes, including the brutal beating of a Haitian immigrant by police.”
He’d come to the top of the Department of Justice’s public integrity unit in 2010 after then-Attorney General Eric Holder needed to clean house because of an embarrassing overturned conviction against former Alaska Sen. Ted Stevens in which it was revealed, according to The Associated Press, the public integrity section had withheld exculpatory evidence from the Republican lawmaker’s legal team.
Since then, we’ve learned a great deal about Smith, his five year tenure at the head of the public integrity unit and what he’s been up to since then — including about the overturned guilty verdicts against Republican lawmakers he was responsible for prosecuting, his association with one infamous Obama-era figure, and his wife’s association with Michelle Obama herself.
That glowing “war crimes prosecutor” copy was from the AP, reporting on Smith’s appointment as special counsel by Attorney General Merrick Garland in November of last year.
“Jack Smith told The Associated Press in an interview [in 2010] that he’d read about the Stevens case and couldn’t resist the chance to step in and run the section,” the wire service reported.
“I had a dream job and I had no desire to leave it, but opportunities like this don’t come up very often,” Smith said. “I left the dream job for a better one.”
Well, now he has the dream indictment of any career Democrat: a 37-count indictment against Trump, including charges of willful retention of national defense information, conspiracy to obstruct justice and false statements, according to Fox News.
But wait, isn’t Smith supposed to be impartial? Even Jonathan Turley, a constitutional law scholar who has often sided with Trump in the past, called it “an extremely damning indictment” from “a serious prosecutor,” which is a whole “different ball game” than the charges filed by Manhattan District Attorney Alvin Bragg.
Trump, for his part, called Smith a “deranged lunatic” in a post on Truth Social. While that might be a bit much and Smith’s charges are a “different ball game” from Bragg’s farcical Manhattan case, just because Smith might be a “serious prosecutor” doesn’t make him a politically neutral one.
Was the indictment of Trump a fair process?
Yes: 2% (33 Votes)
No: 98% (1895 Votes)
Take, for instance, the biggest knock on Smith: his involvement with Obama-era Internal Revenue Service figure Lois Lerner and the scandal that led to her resignation.
Lerner, director of the Exempt Organizations Unit, slow-walked the approval of Tea Party-affiliated and other conservative groups before the 2012, blunting the impact they might have. As head of the Department of Justice’s public integrity unit, the Washington Examiner noted, Smith was closely involved in targeting the Tea Party groups for extra scrutiny.
“Jack Smith was looking for ways to prosecute the innocent Americans that Lois Lerner targeted during the IRS scandal,” said Ohio Rep. Jim Jordan, now the head of the House Judiciary Committee, in a statement to the Washington Examiner upon Smith’s appointment as special counsel in November.
Both Jordan and GOP California Rep. Darrell Issa, who led the House Oversight Committee at the time, tried to get Smith to testify back in 2014 about his role in the targeting scandal.
“It is apparent that the Department’s leadership, including Public Integrity Section Chief Jack Smith, was closely involved in engaging with the IRS in wake of Citizens United and political pressure from prominent Democrats to address perceived problems with the decision,” the representatives said in a media release at the time.
Citizens United v. FEC was a landmark Supreme Court case which held that prohibitions on independent expenditures by corporations or private groups in elections was an unconstitutional breach of the First Amendment’s right to free expression. The IRS targeting scandal was, in large part, triggered by the lifting of those prohibitions, with Lerner telling an audience at Duke University the IRS was under pressure to “fix the problem” the decision created before the 2010 midterms.
Just days before the speech, Issa and Jordan said in the letter, “the Justice Department convened a meeting with former IRS official Lois Lerner in October 2010 to discuss how the IRS could assist in the criminal enforcement of campaign-finance laws against politically active nonprofits. This meeting was arranged at the direction of Public Integrity Section Chief Jack Smith.”
Lerner would apologize and resign, but Smith would never testify on the matter.
Smith inserted the DOJ into what would become the Lois Lerner IRS scandal targeting conservative nonprofit groups during the Obama years.
— Francis Brennan (@FrancisBrennan) June 9, 2023
“The witness said the conversation detailed “how the IRS could assist in the criminal enforcement of campaign-finance laws against politically active nonprofits.”https://t.co/4k4bVXdkON
— Francis Brennan (@FrancisBrennan) June 9, 2023
And then there’s the case of Virginia GOP Gov. Bob McDonnell, who was convicted on corruption counts in 2014 after being prosecuted by Smith; the government argued that McDonnell took improper gifts from a political donor.
However, as Politico noted, the conviction was overturned by a unanimous 8-0 Supreme Court decision in June of 2016. (The case came after Justice Antonin Scalia had died and while President Obama was trying to get a certain Merrick Garland appointed to the court — unsuccessfully, thank heavens.)
In the decision, Chief Justice John Roberts blasted the prosecution for relying on a “boundless” definition of what could constitute corruption.
Smith convicted former Republican Virginia Governor Bob McDonnell, which was later UNANIMOUSLY overturned by the Supreme Court.
— Francis Brennan (@FrancisBrennan) June 9, 2023
“The decision from the eight-justice court could make it tougher for prosecutors to prove corruption cases against politicians in cases where there is no proof of an explicit agreement linking a campaign donation or gift to a contract, grant or vote,” Politico’s Josh Gerstein wrote. “The court’s opinion, written by Chief Justice John Roberts, rejected the government’s position that simply agreeing to meet with someone on account of such largesse could be enough to constitute an official act that could trigger a corruption conviction.”
“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute,” Roberts wrote in his decision.
“A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”
And just in case you wanted to know where the Smith family stands, the special counsel’s wife produced this hagiography of Michelle Obama for Netflix:
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As the New York Post noted: “Katy Chevigny is credited as a producer on ‘Becoming,’ a 2020 documentary about Obama, and Federal Election Commission records show that she donated $2,000 in support of Biden’s presidential run that same year.”
The special counsel’s wife, the Post reported, “also worked on the 2018 documentary titled ‘Dark Money.’ The film is described as a ‘political thriller’ that ‘takes viewers to Montana – a front line in the fight to preserve fair elections nationwide – to follow an intrepid local journalist working to expose the real-life impact of the US Supreme Court’s Citizens United decision.’”
Completely neutral.
To what extent Smith’s political leanings affected his judgment in this case remains to be seen. Both the current president and the woman who wished to become president in Trump’s stead, Hillary Clinton, have had their own run-ins with classified document issues and there were no special prosecutors or charges there.
In this case, one might assume Attorney General Garland knew exactly the right man for the job — and he was hardly going to be independent. After Trump, one can only guess who he goes after next.
