Jack Smith's subtle indictment of the Supreme Court
President-elect Donald Trump. (File photo by Dennis Van Tine/STAR MAX/IPx 2016)
Special counsel Jack Smith’s effort to hold Donald Trump accountable for a wild and ultimately violent attempt to overturn the 2020 election based on lies about voter fraud came to a rather meek conclusion early Tuesday with the release of Smith’s final report.
The report breaks little new ground evidence-wise, instead rehashing much of what we already knew from court proceedings and explaining Smith’s legal case. Smith assures the report’s recipients that the evidence would have been sufficient to convict Trump if Trump’s election as president hadn’t foreclosed his prosecution in the long-delayed case. (That shouldn’t be too surprising, given that Smith decided to bring the case in the first place.)
But that doesn’t mean there’s nothing interesting in the report. Most notably, Smith seems to make a point to offer a subtle but pretty unmistakable rebuke of the Supreme Court and its role in sparing Trump a possible conviction.
The Supreme Court, of course, effectively delayed the Jan. 6 case through its handling of Trump’s novel claims of presidential immunity. Then, despite the lower courts having strongly rejected those claims, it granted Trump and other presidents a large degree of immunity for official acts.
That decision is now likely to be the most significant result of Trump’s indictments. It not only jeopardized at least portions of Smith’s case and delayed it, but it also is likely to be revisited in Trump’s second term, given the president-elect’s penchant for pushing legal boundaries.
Smith spends about one-quarter of his 137-page report discussing and in some cases relitigating that decision. And he suggests he’s not particularly happy about how all that went down—even implying the decision was unthinkable.
“Before this case, no court had ever found that Presidents are immune from criminal responsibility for their official acts, and no text in the Constitution explicitly confers such criminal immunity on the President,” Smith’s report says.
He notes that the Justice Department has previously investigated potential crimes by former presidents using official acts, “and none of those investigations had regarded former Presidents as immune from criminal liability for their official acts. The Office proceeded from the same premise.”
Smith notes that one of those presidents was Richard M. Nixon, who wasn’t charged but was named as an unindicted co-conspirator. He says Nixon was pardoned by Gerald Ford “on both Presidents’ understanding that President Nixon was exposed to criminal liability.”
He also notes that Trump’s own lawyer at his post-Jan. 6 impeachment trial in the Senate argued that Trump shouldn’t be convicted by the Senate because a former president “is like any other citizen and can be tried in a court of law.”
“This Office made its investigative and prosecutorial decisions based on the same understanding,” Smith says.
That could be read as Smith merely justifying his decision to bring the case and explaining why it didn’t reach its intended conclusion. But at other points, he gestures at his disagreement with the Supreme Court.
Smith seems to make a point to repeatedly cite the lower courts’ full-throated rejections of Trump’s immunity arguments, as well as the dissents and other reservations expressed by some justices on the Supreme Court.
He notes that a unanimous appeals-court panel decided that the kind of harassing prosecutions that Trump’s legal team warned about were “unsupported by history and ‘too remote and shadowy to shape the course of justice.’” He adds that a district judge said, “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.”
He describes the Supreme Court’s decision as a “divided” one, while including in a footnote an extensive portion of Justice Sonia Sotomayor’s dissent, which accused the court of creating “a law-free zone around the President.”
He also notes that even conservative Supreme Court Justice Amy Coney Barrett disagreed with the decision in part—specifically how it barred prosecutors from presenting immunized official acts as trial evidence, which hamstrung Smith’s case. (“The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable,” Barrett wrote in her concurrence.)
Smith adds that the Supreme Court majority’s attempts to address Barrett’s concern “create uncertainty regarding which types of evidence of official acts can be used and which cannot.” He says its decision “left open the question of whether evidentiary determinations regarding potentially immune evidence could be appealed before trial.”
In other words: This lack of clarity didn’t help, either.
Finally, Smith suggests the court hamstrung his case in another way: by declining to decide the immunity issue more quickly.
“The Office also sought to move the Election Case forward expeditiously in the Supreme Court based upon the public interest in a prompt resolution of the case and the precedent set by the Watergate Special Prosecutor in United States v. Nixon,” Smith writes.
But then he says the court didn’t follow that precedent.
“The Office filed a petition for certiorari before judgment, which would have moved the Election Case directly to the Supreme Court from the district court, and argued that the Court should follow the Nixon model,” Smith says, adding: “The Supreme Court did not grant the Office’s petition for certiorari before judgment.”
It’s all laid out as being very just-the-facts-ma’am, which one would expect from a prosecutor. Smith takes care not to explicitly cast judgment.
But the sum total of the report’s language is that Smith is conspicuously emphasizing the ways in which the court set aside precedent and the letter of the law and did things that plenty of others—even Trump’s allies and appointees—disagreed with.
And he’s saying all of it thwarted a case he said could have been brought in plenty of time and righteously convicted someone whose alleged crimes were of the utmost severity.
Smith, in his letter introducing his report, says Trump’s conduct meets former Supreme Court justice Robert Jackson’s test of being one “in which the offense [was] the most flagrant, the public harm the greatest, and the proof the most certain.”
None of it went to trial. And Smith clearly has a culprit in mind.
