SCOTUS Dooms Jack Smith--Again

Smith's losing streak before the highest court continues as both of his federal indictments against Donald Trump are in peril--as is the special counsel himself.

Photo by Adam Michael Szuscik on Unsplash

Remember when the media and class of “legal experts” swooned over Jack Smith?

Immediately after Attorney General Merrick Garland appointed Smith as special counsel to take over the Department of Justice’s existing investigations into Donald Trump, news outlets eagerly touted Smith’s credentials. “He’s a hardworking, smart person who knows how to move cases. That’s who he is: He comes in and gets things done,” one former DOJ colleague told the New York Times in November 2022.

Another ex-colleague described Smith as “a brilliant independent thinker and a gutsy lawyer.” A prosecutor on Special Counsel Robert Mueller’s team told CNN that Smith “understands the courtroom. He understands how to try a case. He knows how to prove a case.”

Regime lapdog Andrew Weissmann, in response to Smith’s January 6-related indictment of Trump, said in August 2023 that the case indicated Smith “wants to get to trial quickly.”

But Weissman’s doomsday predictions about the fate of Donald Trump once again didn’t materialize into reality. Nearly one year later, Smith’s two federal indictments against Trump—one for J6 and one for allegedly hoarding national defense files at Mar-a-Lago—are nowhere close to going to trial. 

A series of legal stumbles, bad blood between Smith’s prosecutors and Judge Aileen Cannon in the documents case in Florida, and unfavorable Supreme Court decisions imperil not just Smith’s cases but his media-manufactured reputation as a prosecutorial ace.

How Much Losing Can One Prosecutor Take?

After all, Smith’s losing streak against the highest court goes back nearly a decade; in a 2016 unanimous opinion, SCOTUS overturned the convictions of Bob McDonnell, the former Republican governor of Virginia, and his wife—a case Smith brought as head of the DOJ’s public integrity unit during the Obama administration.

Earlier this year, SCOTUS rejected Smith’s request to circumvent the federal appellate court in Washington and immediately take up Trump’s immunity challenge to the J6 indictment.

But the real damage to Smith came in the form of two consequential decisions handed down in the final days of the court’s term: Fischer v US and Trump v US.

In Fischer, as I detailed here, the Supreme Court overturned how the DOJ has applied the post-Enron “obstruction of an official proceeding” statute against at least 350 J6ers. The court concluded that some element of evidence impairment, including tampering or destroying a record or document, is necessary to meet the statute’s criteria. 

But that is not how the DOJ and courts in Washington have applied the law, relying instead on the broadest interpretation of the statute’s language.

So, too, did Jack Smith.

The obstruction count represents two of the four charges in Smith’s J6/2020 election indictment against Trump. How will Smith now prove Trump impaired evidence related to the electoral certification process? Will he stick with criminalizing Trump’s involvement in advocating for alternative slates of electors in contested states, which is part of his J6 indictment? That’s quite a stretch and one unlikely to withstand future SCOTUS scrutiny.

Or will Smith create some nexus between Trump’s conduct and the handling of electoral certificates on January 6? Will Smith attempt to portray Trump’s pressuring Vice President Mike Pence to reject or send back certificates as proof he “tampered” with a record or document?

One can only imagine what the special counsel’s office is concocting now.

Smith Not Immune to Losing at SCOTUS

The Trump v US case delayed the proceedings in Washington for more than seven months as Trump’s claims of presidential immunity steadily moved through the district court, appellate court, and Supreme Court. 

But the DOJ’s bad planning predated recent judicial wrangling; Smith didn’t hand down the J6 indictment until August 2023, more than two years after the DOJ officially opened an investigation into the former president’s alleged role in the events of January 6.

Did Smith not know an immunity challenge, one pursued by past presidents facing litigation, would slow the proceedings? Did he really think the unprecedented federal prosecution involving the first-ever criminal charges against a former president for actions taken while he was in office wouldn’t encounter significant legal roadblocks along the way?

Now that SCOTUS kicked the immunity question back to Judge Tanya Chutkan, the Obama appointee presiding over the J6 case who did everything in her power to get the matter to trial before the election, Smith and his team remain on ice until she announces her next move. Chutkan likely will schedule a hearing in September to determine which elements of Smith’s indictment fall under the three buckets of immunity—total immunity for official acts, presumptive immunity for other presidential privileges, and none for personal conduct—established by the court.

Then the process essentially begins anew with the pre-election clock ticking down and patience with Smith even among Democrats wearing thin.

But the immunity ruling also jeopardizes the documents case in Florida even though most of the indictment involves alleged post-presidency actions. 

Judge Cannon over the weekend granted Trump’s request to delay some key pretrial deadlines until the immunity matter is resolved in her courtroom; in February, Trump filed a motion to dismiss the documents case based on presidential immunity. The motion is still pending.

“Resolution of these threshold questions is necessary to minimize the adverse consequences to the institution of the Presidency arising from this unconstitutional investigation and prosecution,” Trump’s lawyers wrote on July 5.

Wait, There’s More!

And if that isn’t bad enough news for Smith, Cannon also is contemplating a motion to dismiss based on Garland’s unconstitutional appointment of the special counsel. On that score, Smith did not fare any better before SCOTUS.

Justice Clarence Thomas in a separate concurring opinion in the immunity decision raised concerns that Smith’s appointment broke the law. Per usual, he minced no words:

No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding. [There] are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law.

Ouch. That’s gonna hurt.

Then again, when it comes to his experience at SCOTUS, Jack Smith is used to taking punches.