Jack Smith Speaks

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ABC reported today that the House Judiciary Committee wants to have former special counsel Jack Smith testify—behind closed doors—about investigating the Mar-a-Lago, January 6, and Donald Trump. Jim Jordan, the Ohio Republican who chairs the Committee, wants an interview by October 28. He is calling for Smith to turn over documents and communications too.

Why now? Last week, there was reporting (very unsurprising to anyone who has ever investigated a federal case) that Smith’s probe obtained phone records regarding a number of Republican lawmakers as part of the January 6 case investigation. Jordan wrote to Smith, “As the Committee continues its oversight, your testimony is necessary to understand the full extent to which the Biden-Harris Justice Department weaponized federal law enforcement.”

Republican Senator Josh Hawley of Missouri complained that “The F.B.I. tapped my phone.” He said he’d been wiretapped.

Not so fast, though. Obtaining phone records means getting call information—that can mean which phone number called which other phone number, when, and possibly, how long the call lasted. It’s easy to understand why prosecutors would want that information in virtually any case they’re investigating. Here, given reports that Trump had numerous calls leading up to and on January 6 (for instance, one with brand new Alabama Senator Tommy Tuberville), it would be surprising if they hadn’t done so. The New York Times reported that “The calls were scrutinized because at the time, prosecutors were trying to identify relevant communications between the president and his inner circle with members of Congress on the key days surrounding the violence.”

Call information, which frequently produces investigative leads, is acquired routinely by investigators. But it is not the same thing as a wiretap, which lets law enforcement listen in on a target’s phone calls. To get a wiretap, prosecutors and agents have to get an order from a federal judge in compliance with the strict requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. They have to establish probable cause and show that less intrusive investigative methods were tried and failed. A wiretap only lasts for 30 days, and prosecutors must go back to the judge, with fresh proof, in order to reup the wiretap for an additional 30 days.

Jordan’s allegation that this is the weaponization of the DOJ should fall on deaf ears. Jack Smith was investigating one of the most serious situations our country has ever faced—an effort to interfere with the smooth transfer of power between two American administrations, with involvement by the outgoing president who had lost the election—using routine investigative techniques. Jordan and other Republicans should be able to differentiate between that and wiretaps, since these are statutory creatures and Congress sets the requirements for when they can be used.

Jordan admonished Smith that he was “ultimately responsible for the prosecutorial misconduct and constitutional abuses of your office,” a comment that is a not-too-veiled threat in the era of revenge prosecutions.

Smith spoke out earlier this week, in an interview in London with Andrew Weissmann. Smith praised the integrity, competence, and selflessness of professionals at DOJ and the FBI—many of whom were subsequently fired by the Trump administration. Why prosecute Trump for classified documents when Biden didn’t get prosecuted, Smith was asked. He responded that it was simple because the facts were starkly different; with Trump, there was evidence of willfulness and intent to violate the law regarding protection of classified documents. Trump obstructed justice, even lying and saying he had returned all the documents he retained. Of course, when the search warrant was executed at Mar-a-Lago, it conclusively proved that was a lie.

At a talk he gave last month at George Mason University in Washington, D.C., Smith said, “The heart of the Rule of Law is treating people equally under the rule of law. Good prosecutors do not care about politics. They bring cases that are supported by facts.”

That’s what good prosecutors do. What is the difference between the prosecution of Donald Trump for possessing classified documents and the decision not to prosecute Joe Biden? It’s evidence. Evidence of willfulness and intent and of Trump’s effort to obstruct justice by keeping classified documents from being recovered by the government after claiming his lawyers claimed he’d returned everything in his possession. What makes the prosecution of Jim Comey a perversion of our criminal justice system? It’s the absence of evidence that he committed a crime and the clear direction from the President of the United States to his Attorney General to go after him. We do not need to engage in bothsidesism here; one of these things is not like the other. The people who are complaining that the prior administration weaponized the Justice Department are, in fact, the ones who are doing exactly that, but all of the noise can get confusing and exhausting.

But this is no “he said, she said” controversy. When even Chris Christie, the former New Jersey U.S. Attorney and Governor, who is no stranger to legal controversy like the Bridgegate Scandal, condemns what is happening in this administration, there is every reason to pay attention.

It was the ranking Democratic member of the House Judiciary Committee, Maryland Representative Jamie Raskin, who got it just right, as he so frequently does. With his sarcasm font on full blast, Raskin congratulated Jordan for also “demand[ing] the release of Smith’s full report, and all accompanying records, from his investigation into Donald Trump’s hoarding of classified documents and obstruction of justice at Mar-a-Lago” after “an extraordinary years-long MAGA cover-up has deprived the American public of the opportunity to read this special counsel report that the taxpayers paid for.” Republicans, of course, have not. This is not about a commitment to transparency. This is not about being the party of law and order. It’s certainly not about following the rule of law.

The details about the documents Trump took with him to Mar-a-Lago, and for all we know, keeps there to this day, remain largely undisclosed. Just like the Epstein files are still being kept secret. Donald Trump is committed to an all-powerful presidency. It’s easy to understand why he thinks that’s so desirable—it’s not about doing justice.

We’re in this together,

Joyce