What Jack Smith Left Out

One week before the presidential inauguration, Jack Smith issued a “Final Report” concerning the January 6th prosecution of Donald Trump and his co-defendants.

Presumably, the report is supposed to convince the public that Trump is guilty as charged. Instead, it provides evidence of Smith’s incompetence and bias.

Trump’s attorneys, John Lauro and Todd Blanche, issued a strong rebuttal (Addendum to Final Report) that excoriates this “out-of-control private citizen” for spending more than $20 million to violate “fundamental norms regarding the presumption of innocence …” As they note, “… the Justice Manual prohibits prosecutors from publicly declaring a defendant’s guilt prior to a jury verdict …” Yet, that is exactly what Smith did. It is evident from his concluding statement:

… the (Special Prosecutor’s) Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.

Why bother with trials and juries when there are prosecutors who give us the answer in advance?

In addition to trampling on Trump’s Constitutional right to a presumption of innocence, Smith ignored the Presidential Transition Act, which bars DOJ officials from interfering as a president-elect prepares to assume the responsibilities of office.

Here is a review of some other issues in the report and in the underlying information sources:

ALLEGATION THAT TRUMP INCITED VIOLENCE

Smith suggests that Trump wanted to create a riot (or possibly an insurrection). He says that the president-elect “resorted to a series of criminal efforts … to direct an angry mob to the United States Capitol to obstruct the congressional certification.” Indeed, Smith uses the words “riot” and “rioter” about 85 times in his report.

Given his obsession with the Capitol riot, Smith needs to explain why two essential names are totally absent from his 146-page report: “Milley” and “Miller.”

Perhaps those names are missing because the words of Gen. Mark Milley and Secretary of Defense Christopher Miller clearly prove that Trump had no violent intentions.

(See report of House Administration Subcommittee on Oversight.)   

GENERAL MARK MILLEY, CHAIRMAN, JOINT CHIEFS OF STAFF: “(January 3, 2021) The President just says, ‘Hey, look at this. There’s going to be a large amount of protesters here on the 6th, make sure that you have sufficient National Guard or Soldiers to make sure it’s a safe event.’” [Apparently, Milley disobeyed that order.]

CHRISTOPHER MILLER, ACTING SECRETARY OF DEFENSE: “The President commented that they were going to need 10,000 troops the following day…” [Miller claimed that he did not take the order seriously.]

Although the public did not know of those quotations until recently, Smith has known of them for years.

In addition, the Special Prosecutor bemoans Trump’s “pattern of using social media” (tweets) to publicly attack state and federal officials, judges, and election workers … ”

According to Smith, this led to “specific and graphic threats” about a witness and his family.

The concern for this witness is admirable, but Smith does not even mention the rhetoric that nearly caused Trump to be assassinated — twice. That rhetoric would include reckless accusations of Nancy Pelosi, Liz Cheney, and Mr. Smith, himself. Will his “Final Report” lead to a third assassination attempt?

ALLEGATION THAT COURTS “ALL” REBUFFED CLAIMS OF FRAUD

Smith’s report includes this false statement: “Courts in which Mr. Trump brought numerous lawsuits all rebuffed his claims …” (emphasis added). That is not true. As Smith has to know, about two thirds (66%] of cases were dismissed on the basis of “process” arguments, including standing, laches, and jurisdiction. (A comprehensive overview of court filings is here.)

ALLEGATION THAT FRAUD CLAIMS WERE REVIEWED BY DOJ

Jack Smith states: “Throughout the post-election period, Justice Department officials reviewed Mr. Trump’s claims of election fraud, found no support for any of them, and informed him of such.” This claim is also false.

Based on information obtained from FOIA requests and confidential sources, DOJ attorneys rarely if ever used professional auditors to evaluate claims of election fraud.

Instead, the DOJ lawyers simply gave offhand opinions – sort of like guys on barstools, describing their beliefs about a football game.

To be fair, some officials asked probing questions, but when they did, DOJ’s so-called “Public Integrity” section (PIN) shot them down. The PIN team proudly stated that it would not allow any investigations to take place before the 2020 election – or even in the weeks after the election — up until at least Jan. 6, 2021.

In other cases, DOJ simply deferred fraud investigations to state government. Since the swing states were mostly run by Democrats or “never-Trumpers,” the resultant investigations were minimal or non-existent.

Here are a few examples of unresolved election illegalities, fraud, and irregularities that were ignored by DOJ investigators and by Smith.

A SAMPLING OF ALLEGATIONS IGNORED

•    MICHIGAN: Before and after the election, Trump claimed that Michigan’s Secretary of State, Jocelyn Benson, broke the law by instructing election clerks to “presume” voter signatures matched registration records. After the election, Judge Christopher Murray CONFIRMED the illegality of this “presumption,” which was applied to millions of signatures. Benson did not even appeal, and is very lucky. If she were MAGA, her illegal conduct would probably be treated as criminal. Perhaps she would be in a cell with J6 prisoners.

•    ARIZONA: A very credible allegation was made concerning 35,000 phony ballots in Pima County, Arizona. It was sent to every legislator in Arizona and to the criminal division of DOJ. I have obtained information showing that DOJ investigators and Smith completely ignored this allegation, which remains unresolved to this day.

•    GEORGIA: A veteran election expert, Garland Favorito, identified serious fraud and irregularities in the Democrat county of Fulton, which is the largest in Georgia. These matters were serious, very specific, vast in numbers, and irrefutable. DOJ did nothing in regard to these allegations, which remain unresolved. This information is included in a presentation given by Favorito (starting at 27 minutes.)

•    PENNSYLVANIA: In December 2020, 16 Pennsylvania legislators spent several days trying to reconcile ballots cast to registered voters. They found 202,377 more ballots than voters, and that was almost 2 months after the election. Using weekly updates to the voter registration files, an independent data analysis organization, Verity Vote, confirmed the size of the voter deficit. Later, I personally confirmed the accuracy of Verity Vote’s analysis. The Secretary of State (Kathy Boockvar) claimed that the missing voters would eventually be identified, but they were not. DOJ and Smith simply ignored this matter.

ALLEGATIONS OF FRAUDULENT OR “FAKE” ELECTORS

Finally, we need to consider Smith’s claim that Trump created fake electors. Actually, they were “alternative” electors or, more aptly, “placeholder” electors.

As Constitutional scholar John Eastman recently explained in a presentation at Mar-a-Lago, if a candidate believes he may have won the election, he must identify a slate of “placeholder” electors by Jan. 6 following the election. If that Constitutional requirement is not followed, subsequent corrections to the vote count must and will be ignored.

Ironically, the idea for using alternative electors came from Democrats, who did the very same thing after the 1960 presidential election. Here is an image of the documents they submitted with respect to Hawaii.

CONCLUSION

As stated by Trump’s attorneys, Smith has issued his extrajudicial Final Report “to perpetuate his false and discredited accusations.” More specifically, this rogue private citizen:

•    Ignored President Trump’s right to a presumption of innocence.
•    Disregarded the provisions of the Presidential Transition Act.
•    Withheld exonerating statements made by Gen. Milley and Secretary of Defense Miller.
•    Ignored numerous allegations of fraud and illegality that have never been resolved.
•    Described Trump’s use of “placeholder” electors as “fake,” so that people would erroneously think the electors are evidence of a crime.

Smith has engaged in reckless political prosecutions before. A notable case was described by the America First Policy Institute:

Among his more notable corruption cases, Smith prosecuted the former governor of Virginia, Robert McDonnell, a Republican. Although Smith scored a conviction against McDonnell, the case was later overturned by the U.S. Supreme Court in a unanimous 8-0 decision.

The high court went on to make this alarming statement concerning Jack Smith’s conduct:

 … the uncontrolled power of criminal prosecutors is a threat to our separation of powers.

That “uncontrolled power” is evident throughout Jack Smith’s “Final Report.”

Joe Fried is an Ohio-based CPA who has performed and reviewed hundreds of certified financial audits. He is the author of the recently published Debunked? An auditor reviews the 2020 election— and the lessons learned (Republic Book Publishers, 2022). It explains why the certifications of six swing state elections were premature.

Image: Screen shot from MSNBC video, via YouTube