Jack Smith's Report & Beyond

We’ve now seen Volume 1 of Jack Smith’s report, released just after midnight when Judge Aileen Cannon’s order prohibiting DOJ from making it public lapsed. We already knew a lot of the information in Volume 1, which covered the January 6/election fraud case Smith charged Donald Trump with in Washington, D.C. We know less about the classified documents case, which is memorialized in Volume 2 of the Special Counsel’s report, including what Trump’s motivation for keeping classified materials in the first place and then lying to prosecutors about it was.

Volume 2 wasn’t released because there is still a pending case against Trump’s two former co-defendants, Walt Nauta and Carlos De Oliveira—sort of. Judge Cannon dismissed the case, and it’s on appeal to the Eleventh Circuit. The only thing that seems clear about the case is that it will never go to trial. Once Donald Trump is back in the White House, his Justice Department can dismiss it, or Trump can pardon the defendants. As sensitive as Trump is about releasing the report, there is no way he will permit a full trial, with witnesses testifying to what they know, in this matter.

Given the case’s inevitable fate, why won’t Merrick Garland just dismiss it now, so he can release Volume 2? Maybe he still will. There is little reason not to. Although there is grand jury and possibly classified information in the report that would need to be redacted, it would serve the truth-telling function of the criminal justice system. There will be no punishment for defendant Trump in the federal cases. He will not be deterred, not will others, by two failed prosecutions. He will not be incapacitated so he can do no further harm. So all that is left is releasing the report so the public can get some semblance of the facts, not conjecture, but evidence. It would be uniquely ironic if the Special Counsel’s report on this case, alone, out of all of the special counsel matters—Mueller, Durham, Hur, Weiss, and so on—remained unreleased.

The issue pending before the Eleventh Circuit, whether Judge Aileen Cannon was correct when she concluded that the Special Counsel statute Jack Smith was appointed under is unconstitutional, is an important one. Because Cannon is the lone Judge to rule that it is not, the Solicitor General would undoubtedly like to pursue the appeal in hopes that decision can be reversed. But as a practical matter, the time for that has come and gone. Instinctively, no prosecutor wants to dismiss the appeal in what should be a viable prosecution. But the moment calls for more than traditional institutionalism. We are past due for an infusion of a new kind of institutionalism—a forward leaning variety that speaks to the moment and takes the challenge Donald Trump brings to the rule of law head on.

In his cover letter to the Attorney General, sent over with the report, Jack Smith quoted Attorney General Edward H. Levi, who, he noted, “assumed the Department's helm in the wake of Watergate, summed up those traditions best: ‘[O]ne paramount concern must always guide our way. This is the keeping of the faith in the essential decency and even-handedness in the law, a faith which is the strength of the law and which must be continually renewed or else it is lost. In a society that too easily accepts the notion that everything can be manipulated, it is important to make clear that the administration of federal justice seeks to be impartial and fair ....’”

It is hard to preserve public confidence in the rule of law after the last eight years. But Smith seemed to be appealing to an idea we’ve touched on frequently—not letting Donald Trump drag everyone else down to his level. In that regard, even if they didn’t get to take their cases to trial, Smith believes his team succeeded. Many people have lost confidence in the sine qua non of our democracy, that no man is above the law. Smith wrote, “That is also why, in my decision-making, I heeded the imperative that ‘[n]o man in this country is so high that he is above the law.’” In Smith’s view, as he related his team’s work, this principle was of primary importance as they pursued the case, more than Trump’s ultimate fate. It’s a very different take. Trump may have made a mockery of the system, but in Smith’s view, prosecutors treated him like everyone else and that counts for something. It was the Supreme Court and ultimately the voting public that failed, not the prosecution.

I suspect many of you will be skeptics, and that we will be rereading this transmittal letter and discussing it for some time. My co-host on the Insider Podcast, Preet Bharara, pointed out this morning that the letter reads like an opening statement at a congressional hearing, with Smith already defending the integrity of his team and their work. But it is worth contemplating the spirit of a team of prosecutors who, in the face of a powerful man who publicly taunted them and even threatened to prosecute some of them, continued to do their jobs and remained committed to the idea that we can still be a viable rule of law country if enough of us remain insistent on that path.

That’s what it comes to down to at this point. Courage and vision, and refusing to give up in the face of a would-be authoritarian.

Trump, of course, had a take on Truth Social: “Deranged Jack Smith was unable to successfully prosecute the Political Opponent of his ‘boss,’ Crooked Joe Biden, so he ends up writing yet another ‘Report’ based on information that the Unselect Committee of Political Hacks and Thugs ILLEGALLY DESTROYED AND DELETED, because it showed how totally innocent I was, and how completely guilty Nancy Pelosi, and others, were. Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide. THE VOTERS HAVE SPOKEN!!!”

Trump’s view seems to be that he and his lawyers were playing a game and the only goal was to outflank prosecutors. How very Roy Cohn of him. Not about justice. Not about the American people. Yes, criminal defendants are entitled to vigorous representation from their lawyers. But Trump is a former president who took an oath to uphold the Constitution and serve the American people. Here, as he reembarks on the presidency, the best he can muster is to deride Jack Smith for being “unable to successfully prosecute the Political Opponent of his ‘boss,” engaging in schoolboy level taunting. But it’s worse than just a taunt, because Trump is confirming that in his view, presidents can direct prosecutors to go after their political opponents and prosecutions who don’t pull it off are objects of derision. Not justice, just politics, and dirty politics at that.

Jack Smith didn’t get his cases to trial. Our democracy would be better off if he could have. A jury should have decided these cases. Ultimately, the Supreme Court and Judge Cannon will have much to answer for when we see what path a president who conflates politics and the rule of law puts the country on.

It’s a stark warning about what is coming.

It has become popular for people to say, as they did in 2016, “it won’t be as bad as everyone said.” I’ve heard so many variations on this. People who are counting on Trump’s ineptitude or Americans’ lack of willingness to go along with extreme measures like mass deportations.

Then there was Pete Hegseth’s confirmation hearing to be Secretary of Defense today. If Jack Smith’s report is the past, it is the future.

Yesterday evening, NBC reported that Hegseth’s FBI background check did not include interviews with his ex-wives or with the woman who accused him of sexual assault—which he denies—in a hotel room in 2017. Shades of the investigation that was (or wasn’t) conducted during Justice Kavanaugh’s confirmation hearing. That’s some big stuff to leave out. Makes you wonder what else is missing and how the Senate can advise and consent if it isn’t first willing to learn the facts.

“I just want to emphasize there’s already ample and abundant information on the public record that shows Peter Hegseth lacks the character and confidence to be secretary of defense,” Connecticut Democratic Senator Richard Blumenthal said, according to the report. “There has never been a nominee for this position as unqualified as he is by virtue of financial mismanagement, as well as sexual impropriety and alcohol.”

In today’s hearing, Democratic Senators were on target, revealing the nominee’s lack of experience and character. It’s unlikely to impact Hegseth’s eventual confirmation, but it will make for some interesting finger pointing about who knew what when he implodes. Senator Warren pushed him to explain his sudden change of heart about the role of women in combat after he was nominated. Senator Angus King questioned Hegseth about views that suggest he doesn’t believe in the Geneva Convention, and got an entirely unsatisfactory response. Senators Tim Kaine and Elissa Slotkin were polite but persistent, and their questions about Hegseth’s personal life and professional qualifications and his lackluster answers likely would have been enough to end any other candidacy.

Hegseth claimed every allegation he was drunk or abused women was anonymous and not true. When it was Republicans’ turn, Senator’s like Oklahoma’s Markwayne Mullin excused—“he’s saved”—and even embraced—I’m not in prison because “my wife loved me too”—Hegseth’s alleged misconduct. Saturday Night Live really couldn’t have done it any better, with Mullin asking Hegseth to tell the Senate what he loved about his wife, who was sitting behind him. Hegseth came up with, “She's the smartest, most capable, loving, humble, honest person I've ever met. And in addition to being incredibly beautiful.” He had to be prodded to compliment her for being “an amazing mother … of our blended family of seven kids .”

A suitable metaphor for what America under Trump 2.0 is going to look like.

We’re in this together,

Joyce