Jack Smith's Weak, Watered-Down Election Interference Gambit

By injecting the J6 matter back into the headlines, Smith enjoys the fruits of the DOJ’s attempt to interfere in a presidential election for the third time in a row without doing any labor.

After a year of legal, judicial, and political drama, Special Counsel Jack Smith just filed a superseding indictment to replace the first indictment he handed down against Donald Trump in August 2023 related to the events of January 6 and the former president’s alleged attempts to “overturn” the 2020 election.

Trump faces the four same charges—three conspiracy and one obstruction count—but the new version is nine pages shorter as Smith had to follow the presidential immunity guidance set forth by the Supreme Court in the Trump v US opinion published on July 1. The special counsel removed a large swath of evidence related to Trump’s interactions with his Department of Justice, activity the court determined fell firmly within the scope of a president’s “official” and Constitutional authority.

Additionally, Smith quietly removed Jeffery Clark, an acting associate attorney general at the time, as a co-conspirator, relieving the much-maligned attorney of defending himself against yet another bogus prosecution.

“Jack Smith has made largely cosmetic changes to his original indictment,” Clark told me via text Wednesday morning. “I’m gratified that he removed me—my work was core confidential constitutional advice to President Trump—but the whole indictment, even with the changes, still remains fatally flawed.”

Indeed. Smith faces strong headwinds in salvaging his disintegrating case even with a compliant, partisan judge on the bench. In some ways, SCOTUS’ ruling took Smith back to square one.

New Grand Jury, New Charging Language, Same BS Case

Due to the use of now tainted immunized evidence—SCOTUS determined that the government cannot use immunized conduct during any stage of the investigation or prosecution—Smith had to use a new grand jury in Washington to consider the indictment. Of course, securing an indictment against a Republican, especially the former president, in a city nearly 100 percent populated by Trump-hating Democrats is as easy as cutting butter on an August afternoon. (The DOJ has a perfect conviction rate in J6 cases before D.C. juries while grand juries have handed down at least 1,000 indictments since January 2021.)

Even with the revisions, the watered-down indictment repeats the same misleading and hyperbolic claims Smith made the first time around. “For more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won,” Smith wrote on August 27. “These claims are false, and the Defendant knew that they were false.”

The purpose of the conspiracies, Smith continued, “targeted a bedrock function of the United States government: the nation’s process of collecting, counting, and certifying the results of the presidential election.”

Judge Tanya S. Chutkan, an Obama appointee who attempted to rush the case to trial before hitting a legal brick wall over her December 2023 order denying Trump’s claims of presidential immunity from criminal prosecution, will hold a hearing next Thursday to consider the updated indictment and perhaps discuss a pretrial schedule.

After SCOTUS published the immunity opinion, the media speculated that Chutkan would hold a “mini trial” of sorts to determine which remaining elements of the gutted indictment fall under presidential versus personal conduct; the court, despite breathless analysis to the contrary including a doomsday dissent by the three liberal hens, held that private activity is not protected by presidential immunity.

Which explains another change in Smith’s indictment. In the August 2023 indictment, Smith described Trump as “the forty-fifth President of the United States and a candidate for re-election in 2020.” But in a sleight of hand intended to portray Trump’s post-election activities in office as personal or political and therefore not covered by SCOTUS’ immunity mandate, Smith now describes Trump as “a candidate and private citizen…who was also the incumbent president.”

Preserving the ‘Big Lie’ Before Democrats Do It Again

Hashing out which post-election conduct is immune will require an evidentiary hearing involving witnesses and a public vetting of Smith’s disintegrating case. But according to reporting, Smith does not want this to happen before Election Day. While legal “experts” insist the move is magnanimous and represents Smith’s cautious approach (LOL) to the case, the reality is the DOJ and Biden regime must preserve the “Big Lie” narrative surrounding the rigged 2020 election as Democrats undoubtedly plot behind the scenes to do the same this year.

Imagine former Vice President Mike Pence under cross examination by Trump’s defense attorneys demanding to know why Pence waited until the last possible moment to reject the president’s proposal to return electoral votes from contested states on January 6 or ask why he publicly promoted the idea that the election results were questionable? Same for former Attorney General William Barr--what would he say under oath if confronted about his failure to investigate voting irregularities before and after Election Day despite claims he did so?

And one can only smile at the sight of Georgia Secretary of State Brad Raffensberger pleading the Fifth in refusing to answer questions about his now debunked public statements about the “safe and secure” election in the Peach State. (Raffensberger refused to testify in a lawsuit against Dominion Voting Systems earlier this year.)

Smith’s hope in postponing an immunity-oriented hearing before the election is another politically calculated move in the DOJ’s unprecedented criminal prosecution of a former president. By injecting the J6 matter back into the headlines but delaying any substantive work on the case, Smith enjoys the fruits of the DOJ’s attempt to interfere in a presidential election for the third time in a row without doing any labor.

But Smith troubles in the J6 case extend beyond the presumably still-tainted investigation. (SCOTUS strongly suggested the former president’s interactions with Pence were also possibly immune but Smith ignored that passage and preserved those allegations in the new indictment.) It does not appear Smith addressed SCOTUS’ ruling in Fischer v US, which overturned how the DOJ has applied 1512(c)(2) in January 6 cases.

The Fischer opinion required an element of document and/or evidence destruction not simply the interruption of a government meeting. The language substantiating Smith’s 1512(c)(2) charge is identical in both indictments—that Trump obstructed the certification vote not impaired any evidence—reflecting a failure to adhere to SCOTUS decision.

Meanwhile, Smith has his hands full in southern Florida in a likely vain effort to salvage the documents case against Trump. Earlier this week, Smith filed his first brief in the appeal of Judge Aileen Cannon’s July 15 order dismissing the classified documents case based on Smith’s unconstitutional appointment. The case, as I reported for months, was quickly unraveling in Cannon’s courtroom before her surprise decision; Smith and the DOJ have an uphill battle in convincing the 11th Circuit to once again overturn Cannon and endorse Attorney General Merrick Garland’s dubious appointment.

Of course, all of this will be rendered moot if Trump regains the presidency in November. Then, it’s their turn.