Hit the Road, Jack. But Don't Go Too Far

After spending at least $50 million in tax dollars to bring two unprecedented indictments against Donald Trump, Special Counsel Jack Smith should get his turn under prying eyes.

Jack Smith lurched into a Washington courtroom in September, fully aware all eyes had turned to him.

Surrounded by a team of federal prosecutors and guarded by a government-paid security detail, Smith, a lanky man with a scruffy beard and ill-fitting suit, stood behind the government’s table with arms folded. He slowly turned around with a partial scowl to appraise the audience—mostly reporters and D.C. residents eager to watch the restart of his January 6-related case against Donald Trump—to make sure he was noticed. He did not speak during the proceedings.

That appearance, perhaps unbeknownst to him at the time, looks like Smith’s last time in a federal courtroom as the special counsel prosecuting Trump. Citing Department of Justice rules that prohibit the prosecution of a sitting president, Smith reportedly is working with his bosses at the DOJ to figure out how to drop both the D.C. case and the classified documents in case in Florida; Smith has appealed Judge Aileen Cannon’s order dismissing the indictment based on the special counsel’s unconstitutional appointment.

The move represents another political fatality tied to Trump’s resounding victory on Tuesday. It also represents another humiliating defeat for the man the media portrayed as a steely war-crimes prosecutor plucked off a high profile international trial at the Hague by Attorney General Merrick Garland in November 2022 to finally realize a longtime DOJ dream: put Donald Trump behind bars.

Stone Cold Loser Loses Again

But the hagiography about Smith—reporters swooned over the silent-type injured triathlete, even covering his stop at a DC sandwich shop in 2023 as “breaking news”—never matched his record. The Supreme Court in 2016 unanimously vacated the bribery conviction of former Virginia Governor Robert McDonnell, a case brought by Smith when he led the DOJ’s public corruption office during the Obama administration. Following Smith’s appointment, McDonnell told Mark Levin that Smith would “rather win than get it right.”

Smith, however, usually does neither. In fact, his prosecutorial resume is a long list of courtroom losses, which makes one wonder why Garland chose him for the job. (More here).

Smith failed to win a single conviction in his prosecution of former Senator John Edwards on campaign finance charges in 2012. One DOJ watchdog group slammed Smith for using an “overly aggressive approach” in pursuing Obama’s 2008 Democratic primary rival and for relying on a “novel interpretation of campaign finance laws” to put Edwards behind bars.

It is an approach he repeated in his two unprecedented criminal indictments of Trump. The four counts in his J6-related case rely on vague conspiracy and obstruction statutes; two of the charges involve 18 USC 1512(c)(2), the post-Enron tampering with documents statute. In June, the Supreme Court reversed how the DOJ had applied that law in hundreds of January 6 cases and the court would have reached the same conclusion about Smith’s interpretation of the law if the case ever made it there.

In fact, the court this year rebuked Smith twice—by denying his highly unusual request to bypass the D.C. appellate court to immediately consider the presidential immunity question and by rendering its landmark decision in Trump v US, which largely gutted the J6 indictment.

Evidence of Misconduct in Classified Docs Case Demands Investigation

Smith’s classified documents case consisted of a hodgepodge of allegations about Trump’s possession of alleged national defense papers after he left office and accusations that he and two aides attempted to obstruct the investigation, which began in February 2022. But the DOJ’s handling of the case represents the best opportunity for a Trump DOJ to turn the tables and investigate main Justice and Special Counsel’s office for numerous offenses.

The case was tainted from the start. Although the alleged crimes occurred in Palm Beach, the DOJ conducted the entire investigation in the Trump-hating courthouse in Washington. This permitted unabashed Trump hater Chief Judge Beryl Howell to act as a rubber stamp for the DOJ’s requests including authorizing grand jury subpoenas and piercing attorney-client privilege claims between Trump and his lawyer, Evan Corcoran, under the rarely-used crime fraud exception.

Smith transferred the case to the proper jurisdiction in southern Florida at the last minute to get an indictment and then ran into a buzzsaw named Judge Aileen Cannon.

Thanks to Cannon’s fierceness—her concerns over the dirty nature of the case dates back to September 2022 when she appointed a third party to vet the items collected during the FBI’s armed raid of Mar-a-Lago the month before—the special counsel’s office was forced to disclose instances of tampering with and perhaps destroying evidence, intimidating witnesses, withholding discovery, and misleading the court. 

Court proceedings also revealed egregious misconduct related to the unprecedented armed raid of Mar-a-Lago; agents working out of the Washington and Miami FBI field offices breached the broad terms of the search warrant by ransacking the bedrooms of Melania and Barron Trump. The FBI’s plan included the bureau’s use of lethal force policy, underscoring the excessiveness of the raid, which was altogether unnecessary considering Trump and his lawyers had been cooperating with authorities for months.

Prosecutors later admitted in court that some of the records seized during the raid were not properly handled by investigators; defense attorneys claimed documents were missing.

Defense attorneys also obtained communications between the DOJ, the National Archives, and the Biden White House that demonstrated a behind-the-scenes effort to concoct a documents case as early as May 2021. A Trump DOJ should haul before a grand jury everyone from Biden’s general counsel Jonathan Su to deputy attorney general Lisa Monaco and top NARA officials involved in the scheme.

Conspiracy to defraud, anyone?

Show Us the Money

A full-blown audit into the special counsel’s expenditures should be conducted by either a Trump DOJ or a Republican Congress. Smith’s prosecutors often bragged about “the permanent, indefinite appropriation for independent counsels” allowed under 28 U.S.C. § 591 note, a claim Judge Cannon also doubted.

According to required financial reports, Smith’s team spent at least $35 million in the first 14 months of his investigation, a figure that includes additional support from main Justice. But those costs only cover the period from November 2022 through March 2024; it’s likely Smith blew through another $15 million or so over the last several months, bringing the total to over $50 million.

Expenses include a protective detail for Smith; travel expenses; and millions in unspecified “contractual services.”

Time to see who and what companies profited off the special counsel grift.

Weak Republicans in Congress undoubtedly will resist efforts to investigate and audit Smith but Trump should ignore them.

The American people—as well as Trump himself and his co-defendants—deserve a full accounting of this dirty, rogue, secretive process. And Smith and his accomplices need to be held accountable.