Jack Smith — There He Goes Again
Special Counsel Jack Smith is on a mission to convict Donald Trump before the election, and if needed, before the inauguration. At every level of the judiciary, Smith has urged federal judges to move at breakneck speed so he can get his man. Now that Judge Aileen Cannon has determined that Smith was unlawfully appointed, Smith is once again racing for another appeal. But there is no good reason for the courts to move more quickly than they usually would. Indeed, moving any faster or slower than normal would suggest that the judges are favoring one side or the other.
Despite all the faux outrage over Judge Cannon’s decision, she disqualified only one person from pursuing this case: Jack Smith. Cannon did not grant Trump any immunity for his actions during or after he left office. The United States attorney for the southern district of Florida is fully capable of prosecuting Trump. To be sure, Attorney General Merrick Garland does not want his Justice Department to take the heat for prosecuting his boss’s political rival, but that is a political problem for Garland and the administration and not a legal problem for the judiciary. The Court of Appeals for the Eleventh Circuit has no reason to accommodate politically motivated efforts to convict Trump before the election or inauguration. Trump should be treated like any other defendant.
Jack Smith Is Hardly Qualified to Investigate Trump
In November 2022, Garland plucked Jack Smith from the International Criminal Court in the Hague to investigate Donald Trump. At the time, Trump was a private citizen, so there was no conflict of interest with the administration investigating one of its own officials. Based on past practice, Garland should have selected a Senate-confirmed U.S. attorney to investigate the matter. Judge Cannon observed there is, at best, a “murky historical record” of appointing special counsels from outside the government. But still, Garland chose an outsider, who had a record of aggressive, and ultimately unsuccessful prosecutions of government officials, including former Gov. Bob McDonnell and former-Sen. John Edwards. (READ MORE: The Left’s Vicious War on Judge Aileen Cannon)
Smith indicted Trump in the District of Columbia for his conduct leading up to and during Jan. 6. Smith also indicted Trump in the Southern District of Florida for his failure to return purported presidential documents that were stored at Mar-a-Lago after he left office. The D.C. case was always the trickier prosecution since it raised novel questions about presidential immunity for Trump’s conduct while in office. In December 2023, the D.C. trial court largely ruled in favor of Smith and denied Trump immunity in most contexts. Trump sought to appeal this ruling, but Smith attempted to bypass the D.C. Circuit Court of Appeals by leapfrogging the case directly to the Supreme Court. Smith wanted the Supreme Court to rule on the immunity issue in a matter of weeks. He wrote that the case “involves an issue of exceptional national importance: the amenability to federal prosecution of a former President of the United States for conduct undertaken during his presidency.”
Trump’s lawyers responded that Smith “never explain[ed]” why the expedited timetable was needed. The reason, they suggest, was “a partisan motivation,” such that Trump would “face a months-long criminal trial at the height of his presidential campaign.” The Supreme Court saw through Smith’s gambit and denied his request for a super-expedited briefing. Instead, the justices would wait for the court of appeals to decide the case, and then they resolved the issue on a somewhat expedited schedule a few months later.
The Point Is to Affect the Election
In the immunity case, there was at least a plausible case for speed. If Trump was immune from prosecution, then the entire case would have to halt immediately. But in the Florida documents case, there is no legal issue of national significance. This decision, unlike the immunity case, will have a minimal impact on the future of presidential power. And this case would in no way disqualify Trump from the ballot, as was at issue in the insurrection cases. Judge Cannon’s ruling simply held that Jack Smith lacked the authority to conduct the prosecution. Cannon’s decision does not prevent Markenzy Lapointe, the United States Attorney for the Southern District of Florida, from prosecuting Trump for the Mar-a-Lago allegations. Remember, Garland appointed a Senate-confirmed U.S. attorney to prosecute Hunter Biden. If it was good enough for the president’s son, it ought to be good enough for the president’s political opponent. Simply put: Lapointe could seek a new indictment of Trump based on the existing record. And Judge Cannon’s decision would not bar Lapointe from hiring all of Smith’s deputies. Any delays would be minimal — all amounting to far less than the delays needed to appeal Judge Cannon’s ruling up through the Supreme Court. (READ MORE: Jack Smith and the Hijacking of January 6)
Smith and Garland have been unwilling to allow Lapointe to handle this prosecution. Instead, Smith has already filed his notice of appeal to the Eleventh Circuit Court of Appeals. Smith has not accepted this temporary setback and he will not allow the Senate-confirmed United States attorney to prosecute Trump. Likewise, Garland is unwilling to let Lapointe, who was nominated by President Biden, prosecute President Biden’s political rival. Either way, Smith will be left with the same dilemma: How to tap dance around the fact that the primary purpose of rushing this case is to convict Trump before voters head to the polls? Historically, the DOJ sought to avoid the appearance of interference with elections when prosecuting political candidates. But here, in our opinion, the basis of Smith’s haste has been to affect (if not pre-empt) the election.
Smith seems to have determined that it is in the best interest of our democracy for voters to know whether Trump is convicted of a federal felony before voting. This is an extremely difficult political judgment that turns on disputed conceptions of what the public ought to know for the sake of democracy. Moreover, seeking to time a trial and conviction in this manner would mark a public and complete break with DOJ principles and policies of prosecutorial neutrality. It is imperative that the case against Trump be tried in the ordinary course of law, in the ordinary way, under an ordinary schedule. This case cannot be tried using newly invented legal rules, by a faux prosecutor, under an expedited schedule serving nakedly political (if not partisan) ends. Then-Attorney General Robert H. Jackson wisely observed that “the most dangerous power of the prosecutor” is “that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.” Only by adhering to this course of conduct does the judiciary uphold the rule of law. (READ MORE: The Sum of All Democrat Fears)
In December 2023, the Wall Street Journal observed that Jack Smith was “dragging the Supreme Court into the political thicket.” Once again, it seems that Smith is trying to drag the judiciary into this thicket. The courts should be in no rush. Let this case play out in the normal course. As Justice Antonin Scalia observed nearly four decades ago, “Under our system of government, the primary check against prosecutorial abuse is a political one.” Perhaps the greatest virtue of Judge Cannon’s ruling is that Garland will now be forced to make the tough political decision that he resisted since he took office: Appoint a politically accountable prosecutor to try the president’s political rival.
Josh Blackman (South Texas College of Law Houston) and Seth Barrett Tillman (Maynooth University School of Law and Criminology, Ireland) are constitutional law professors. They filed an amicus brief in support of President Trump in Judge Cannon’s court, and Blackman presented at the oral argument.
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