About That Special Counsel…(whose first action knocked down Donald Trump)

JACK SMITH*

A staccato-short name, at once ordinary and reminiscent of dozens of spy novels.

A photo suggesting pugnacity and determination.

The photo seems to mesh with the opinions expressed by those who know him and have worked with him. Former Mueller investigation prosecutor Andrew Weissmann has said that he has himself been described as a “pit bull,” but

“Jack Smith makes me look like a golden retriever puppy. So tenacious and fearless. And apolitical and ethical.”

Smith has experience in the Internal Criminal Court in The Hague, where he was responsible for investigations involving foreign government officials accused of war crimes. His impressive background includes handling various public corruption cases and heading the Department of Justice Public Integrity Section.

He is a registered Independent whose former colleagues say they have no idea about his political opinions. Will that lack of obvious bias persuade the Republican base and their invertebrate leaders of his impartiality? Of course not. But it should—perhaps may—lead Americans outside the MAGA world to believe that if Smith decides to indict the former guy, his motivations are pure.

Harvard Professor Emeritus Lawrence Tribe offered his own vote of confidence:

“…When this Mr. Smith goes to Washington, he will become the fiercest, fairest leader of a prosecutorial team that until now has lacked a leader dedicated to the crimes leading to Jan 6 and those landing in Mar-a-Lago.”

Donald, he’s coming after you…

The Felon-in-Chief is clearly a tad upset about this development. The name calling and attempts to sully the prosecutor’s reputation are well under way.

Though we’ve known since the FBI swooped into Mar-a-Lago on August 8 that the government was investigating Trump’s theft of confidential documents, we learned only from Attorney General Merrick Garland’s November 18 announcement of Smith’s appointment that the Justice Department had also opened an investigation of Trump’s involvement with the January 6 Insurrection.

In his speech detailing Smith’s responsibilities, Garland spoke of both investigations.

“The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.”

When Garland made his announcement, he said pointedly that Smith’s responsibilities won’t involve current or future investigations or prosecutions that were committed on the Capitol grounds January 6. These efforts will continue to be handled “by the US authority for the District of Columbia.”

Garland explained:

“The special counsel will conduct parts of the first investigation I just mentioned, The investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or with the certification of Electoral College vote held on or about January 6.”

“As special counsel, he will exercise independent prosecutorial judgment to decide whether charges should be brought.”

Regardless of whether Garland was being overly cautious—and some think the appointment unfairly suggests the DOJ couldn’t have done its work free of bias—there seems to be growing confidence that Jack Smith is quickly getting up to speed.

Exhibit A is the letter he filed with the 11th Circuit Court of Appeals—on Thanksgiving, no less—pointing out that Trump’s lawyers in what I think of as the Mar-a-Lago Secret Document Sticky Fingers Case had earned three judicial Pinocchios for claims they’d made in Trump’s behalf.

Late yesterday, the Court issued a strongly worded decision that squelched the wacky rulings of Florida Judge Aileen Cannon, who insisted on a Special Master (not to be confused with this Special Counsel) to pursue what she seemed to view as a challenging judicial question: Were documents the FBI found in Donald Trump’s basement, which the government had classified as Top Secret, reallyreallyreally classified?

That 11th Circuit decision–by a three-judge panel including two Trump appointees–removed the weird special protection Judge Cannon was giving Trump. Seems these judges place some value on those arcane ideas about separation of powers and no person–not even a former President–being above the law. (Teri Kanefield, a prominent legal commentator, said the Court has given Judge Aileen Cannon a grade of “F.”)

The decision will speed up developments to help the Justice Department show that Trump had “knowledge and intent” about those documents, resulting in this karmic linguistic somersault:

The case that’s been called Trump v. United States will melt away in seven days; in its place will rise The United States v. Trump.

Though Trump will probably appeal this ruling to his buddies on the Supreme Court, it’s unlikely they’ll side with him on this clear-cut national security issue involving very basic questions of American law.

With regard to the pace of this investigation, I return to legal commentator Andrew Weissmann:

“For those concerned that the appointment of a Special Counsel will delay things: just the opposite. Jack is a super fast, no-nonsense, and let’s cut-to-the-chase kind of guy. And now with less DOJ bureaucracy in decision-making, the investigations can move faster.”

And for those who worry it will meet the sorry fate of the Mueller Report, Weissmann offers this reassurance:

“The new Special Counsel, unlike Special Counsel Mueller, WILL be able to indict Trump as he is no longer POTUS and WILL NOT have to worry about being fired from one day to the next by sitting POTUS. And he inherits a large amount of evidence and a team that is in place already.”

(Weissmann wrote a book about his Mueller investigation work: Where Law Ends: Inside the Mueller Investigation.)

I’m hoping we’ll learn within a few months that Trump’s been indicted in the case of the documents he assured the world he’d declassified in his mind. (We know the power of that mind, right?)

Of course the Mar-a-Lago case is more straightforward than the dreadful kaleidoscope that was the January 6 Insurrection. That one will take more time.

From what I understand, this week’s successful prosecution of the Oath Keepers leader and his pal for Seditious Conspiracy—a very tough conviction to obtain—and the other criminal felony findings against both those two and three more in their gang may well oil the wheels toward new prosecution. Whether those charges reach the former White House occupants is still to be determined.

I’m wondering—and perhaps we’ll find out when the January 6th Committee issues its report shortly before Christmas (lousy timing, methinks…)—whether Smith’s investigations will entangle the Republican lawmakers whose behavior and speech have sure suggested Insurrection. And whether we’ll learn who funded January 6th. And if Ginni Thomas will be treated like any ol’ Insurrectionist who isn’t married to a corrupt Supreme Court Justice. (If not, will we learn why not?)

Who, if anyone, will be investigating the people in the Secret Service, Department of Defense, and Homeland Security who were emphatically not protecting our democracy that day? And will we ever find out who planted the pipe bombs at the Democratic National Committee and Republican National Committee?

Those questions notwithstanding, I’m pleased to know that Jack Smith is at the helm. How confident are you that his appointment as Special Counsel means that justice will at last be served?

Annie

*Photo: https://www.silive.com/news/2022/11/jack-smith-special-counsel-named-in-the-trump-investigations-has-ties-to-staten-island.html

60 thoughts on “About That Special Counsel…(whose first action knocked down Donald Trump)

  1. There’s an old saying about leading “The life of Riley” (meaning a privileged life) which became the title of a radio and TV comedy series in the 1940s & 50s. In that series, Riley (played by William Bendix) had a favorite catchphrase: “What a revolting development this is!” Your post brought this back to mind because it looks like time is finally running out for Trump leading the life of Riley. “What a revolting development this is” for the criminal-in-chief….and it couldn’t happen to a more deserving lowlife.

    Liked by 4 people

    1. That awful, damaged man has gotten away with so much! He tried to stage a revolt, but Jack-the-Incorruptible is on his case, and the law is about to show him what a revolting development he is! His Life of Riley has ended. Thanks, mm.

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  2. What is justice in this case? America’s problem isn’t the former president, but the many, in and out of government, who approve and excuse him. The best outcome, as with Spiro Agnew, could be a plea deal or, as with Richard Nixon, a pardon. Most importantly, Trump’s behavior should not become the new normal. I don’t wish to hear his lawyers argue in court, that his crimes were legal under The Constitution.

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    1. You still feel that way, William? Again, I understand the sentiment, but I believe even more strongly now that he must not go unpunished. I don’t see how a pardon doesn’t reinforce the sense that his behavior IS the new normal. Who can steal America’s secrets—attacking our national security—try to prevent the discovery and return of these documents, etc, etc, and be forgiven? Anyway, a pardon necessitates admission of guilt, and I can see him pleading insanity before doing that.

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      1. He must not be tried and acquitted, he must not be elected again, his base should not be reenergized. Better to be pardoned by President Biden for his crimes in the interest of conciliation and closure, rather than by a future Republican President as victim of a “witch hunt.”

        Trial and conviction would change no one’s mind. His supporters would blame overzealous prosecutors and partisan judges. There would be a backlash and moves for retribution, likely resulting in the election of insurrectionists, particularly in “red states.” Political divisions would harden; more moderates would be voted out. Better that he should be seen as unfairly escaping responsibility, than to be seen as wrongly prosecuted.

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      2. A pardon for Trump would be the death of American justice (what’s left of it). It would confirm beyond all denial or recovery that the rich and powerful are exempt from the laws that apply to the rest of us, and that they will protect each other from justice, even across party lines. No one would ever again be able to claim that America is a country of laws, not and be taken seriously.

        If Trump is put in trial, there’s a slight risk of him being wrongly acquitted, but it’s a risk we need to take. Garland, Smith, and others who are working on his crimes at the federal level and in New York and Georgia, are capable people who will take the trouble to get things right. Given their competence, and the sheer number of crimes he can be charged with in those different jurisdictions, the risk of him getting off every time seems small. But if he’s pardoned, or never prosecuted, the country would never recover.

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      3. I emphatically agree with everything you’ve said here, Infidel. The three 11th Circuit Court of Appeals judges are as conservative and Republican as they come, but they couldn’t have been more forthright in denouncing the harm inherent in Judge Cannon’s ruling, which even gave Trump more than he’d asked for. And I’m hopeful that the recent convictions of the Oath Keepers, which may be duplicated in upcoming trials against some Proud Boys and fellow Insurrectionists, will deter others from renewed violent plans/actions. Regardless, fear of Trump’s ability to provoke violence cannot become a protective cloak surrounding him, preventing the government from charging him for whatever are the most serious crimes the evidence supports. To do otherwise seems to me not only legally and ethically wrong, but also ultimately more dangerous than anything he can possibly incite.

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      4. Infidel, can you explain why the pardon of Nixon wasn’t the death of American justice, or was it?

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      5. William, I want to note here that Jill Wine-Banks, who was a young prosecutor during the Watergate era, has said repeatedly that she thinks Ford’s pardoning of Nixon was a serious mistake. In fact, she’s questioned whether that action has emboldened Trump in various ways.

        Liked by 1 person

      6. The pardon of Nixon was a serious mistake, and should not have happened. But he did at least suffer some punishment, being driven to resign by the threat of impeachment and conviction. Everyone knew that if he had not resigned, he would have been tried in the Senate and condemned.

        It also matters that Trump’s crimes are far more serious than Nixon’s were. Nixon never betrayed the country to foreign enemies, or stole national secrets when he left office, or instigated an insurrection against the Constitutional election process. Trump is a traitor many times over, deserving of execution. Our rotted-out and corrupted justice system will never give him the death sentence he deserves, but he must receive the nearest approximation to justice that it can stomach meting out to him.

        Liked by 1 person

      7. Although I’m unalterably opposed to the death penalty and–apart from the “Supremes”– a bit more sanguine about some of the courts, eg, those that struck down all but one of Trump’s attempts to foment his big lie, and this court’s ruling–I do agree with your comparison of Nixon and Trump, Infidel. And I’m not sure why there isn’t more use of the word “traitor” vis-a-vis Trump.

        Liked by 1 person

      8. One thing DJT surely knows is being President protected him from the law, which is likely his main reason for running again. Prosecution would take years, wouldn’t keep him from running, and would antagonize and energize Republican supporters. The GOP is unlikely to shun him while he is under attack; otherwise they might prefer another candidate.

        Liked by 1 person

      9. Yes, very interesting. Would Congress vote to remove a convicted President, if one were elected, I wonder. Renato Mariotti discusses one particular scenario; responsible officials might find another way out as in the case of Spiro Agnew.

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      10. Agnew agreed to a plea bargain. Corruption charges were dropped in exchange for his resignation. “Bagman” by Rachel Maddow tells the whole story.

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      11. Corruption charges are vastly different from stealing and refusing to return Top Secret classified documents and inciting an Insurrection to overturn a Presidential election. I guess this is a matter where you and I can simply agree to disagree, William.

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      12. Annie, I find the two situations highly parallel. The corruption charges were serious and would have meant a long prison sentence. When Agnew learned of the investigation, he proclaimed his innocence; he pushed back, claiming political bias, over-zealous prosecutors, and leaks to the press. Concerned that Agnew, who would be charged with multiple felonies (particularly accepting envelopes of cash in his White House office), might become president, Attorney General Elliot Richardson orchestrated the plea deal. To avoid prison, Agnew agreed to resign.

        Agnew wasn’t certain to become president; neither is Trump, but there is that danger. Like AG Richardson, AG Garland will have to decide if law enforcement is more important than protecting constitutional government from the possibility of a criminal president.

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    2. Failure to prosecute Trump, if it is determined he broke the law, would be a miscarriage of justice. Decisions about criminal activity cannot be influenced by politics. To not prosecute a private citizen because he was once a member of the government would only serve to increase the probability of bad behavior by government officials. We should never prosecute for political purposes but we should also never NOT prosecute for political purposes.

      Liked by 1 person

      1. Joseph, I disagree with your second and last sentences. Decisions about criminal activity should seldom be influenced by politics, but often are and occasionally must be. Prosecutors are elected officials or political appointees; clearly they sometimes make political decisions.
        When Presidents pardon criminals, they overrule prosecutors. Attorney General Garland may have to decide whether or not to prosecute, when doing so conflicts with his oath to defend The Constitution. When Attorney General Richardson faced a similar decision, I believe he made the right call.

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  3. I won’t venture a guess as to whether this moment — at last! — is when justice will be served. We have skirted close to this a few times before (anyone remember the years in the making Mueller report where hand-picked, top-of-their-game investigators announced, indeed urged, that the report set forth a roadmap to prosecution?). Wait and see.

    Liked by 3 people

  4. Thank you for this update. Justice can take a long time… and sometimes never arrives! Mr. Smith sounds like a great choice for this very challenging task. I also continue to admire your way with words (for example: “the dreadful kaleidoscope that was the January 6 Insurrection.) Please keep writing and explaining! ps: Andrew Weissman is the brother of one of my doctors. So I am always excited when he chimes in to the national conversation with his wisdom, experience and perspective!

    Liked by 4 people

    1. Thanks so much, Will. I appreciate your comment and encouragement! So Interesting that you’re connected to Andrew Weissmann. I greatly value his explanations, which always seem clear and solid and are laced with humor when appropriate.

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  5. I’m not at all confident that justice will be served or that Trump will ever get the true comeuppance he deserves. By next month at this time the House will disband the January 6 committee and will start investigating Joe Biden and Hunter Biden and will attempt to impeach Biden and half of his cabinet. So justice served? Don’t hold your breath.

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    1. I hear ya, Fandango, and there’s reason for skepticism. But the January 6th Committee can, if it chooses, transfer its investigation to the Senate. What’s more important, I think, is that although Garland, as a political appointee, isn’t protected from the reaches of the Republican lowlifes, the Special Counsel does have such protection. In addition, the Republican House is involved in chaos of its own making. Some of the newest members, such as those from New York State, are more moderate. They aren’t beholden to Trump, and they know if they go along with the worst of their members, their House careers will be mighty short. The Democrats won’t need many of them to cross over if things get really bizarre. I’m not suggesting the next two years will be fine; I’ve written about Marjorie Taylor Greene as the chief Republican strategist, after all. I just think there’s reason to be hopeful.

      Liked by 3 people

  6. I agree, Annie, that Jack Smith is exactly the right person to carry on this prosecution. I dearly hope that Donald Trump is found guilty of something, at least, and punished severely for it, whatever that means–hopefully, at least, prohibiting him from holding elective office again, ever!

    Liked by 3 people

    1. Thank you, George. It seems that Constitutional prohibition isn’t enough: there must be legislation to enact it. So we must hope that if the Republicans are corrupt and foolish enough to run an Insurrectionist who also stole top secret information and did who-knows-what with it, We the People must resoundingly vote No Way! I hope it doesn’t come to that!

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  7. I love the quote by Andrew Weissmann at the beginning regarding Jack Smith. I am more confident than before that Jack Smith is the right person for the job, and his non-partisanship should quell any thoughts that he is a “partisan hack”, though as you say, some Republicans will continue to spew venom and lies, for that is the only way they know how to operate. When you don’t have a leg to stand on, when the facts are your enemy, then … what else you gonna do but point the finger and lie? I do have confidence in Jack Smith to recommend that the DoJ bring charges based on sufficient evidence on both fronts. They better, for we cannot afford even the possibility of his name being on the final ballot in November 2024 … not after his effusive praise for Kanye West and Nick Fuentes, and not after he has already said we should set aside the Constitution to make him president for life! Great post, Annie!

    Liked by 3 people

    1. Thanks so much, Jill! I was dismayed when I first heard that Article 14, Sec 3 of the Constitution does not automatically bar Trump, et al, from office even if he’s found guilty of those oath-violating actions. It’s a convoluted issue that could involve Congressional action, individual state legislatures, and the courts. We may just have to put our faith in the growing majority of voters who seem to be repelled by Big Liars and associated haters!

      Here are a couple of relevant pieces.

      https://www.democracydocket.com/analysis/how-the-14th-amendment-could-disqualify-trump-and-his-allies/

      https://www.lawfareblog.com/14th-amendments-disqualification-provision-and-events-jan-6

      Liked by 1 person

      1. Thanks, Annie! I’ve bookmarked those two pieces and will check them out later this evening. My gut instinct is that it will ultimately fall to the Supreme Court and while they are tipped strongly to the right, I’m pleased to see that they have ruled against Trump recently.

        Liked by 2 people

      2. If you’re interested in writing about this issue, Jill, there’s a more recent Lawfare piece that looks valuable too. I skimmed it—and saw a reference to the implications of this Section being “undemocratic.”

        Liked by 2 people

      3. Thanks, Annie! I’m not sure if I will write about it just now, but eventually I probably will. And I will definitely seek out the recent piece you mention, for this is a topic that’s in my top 5 list of “topics of interest”.

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      4. The fact that it hasn’t become more clear cut by now is most unfortunate, I think—especially since that awful man just said we should tear up the Constitution and put him back into office. I hope the DOJ indicts him ASAP! Calling Jack Smith!!

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      5. There may be a rose hiding under the thorns, for his comment about terminating the Constitution may be the straw that broke the camel’s back regarding his followers … or at least some of them. But yeah, HURRY UP Jack Smith and Merrick Garland. Get this ‘man’ out of our lives before he does damage that will take a century to repair.

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      6. I’m not worried on that one, for the chances of the House actually de-funding the Department of Justice are just about the same as the chances of me growing wings and flying to Tahiti! That’s one that I think you can put back in the box, at least for now.

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      7. We must hope that the incoming Republican moderates will flex their muscles and join with the Democrats in keeping the crazies in check, Jill. A lot will depend upon the battle for Speaker. I remain the optimist who worries a lot…

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      8. There are incoming Republican moderates? Who knew? In fact, who knew there were any Republican moderates left in the world? Heh heh … yeah, I’m also the optimist who worries a lot. Earlier this evening, my granddaughter said she was feeling more hopeful after the results of the mid-term elections, and I should have kept my mouth shut, but I gave her several good reasons to not feel too hopeful, to go back to worrying. 🙄

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  8. “Although I’m unalterably opposed to the death penalty” Annie. It is always morally wrong and self defense is overused, most situations are avoidable. It does not serve justice, only vengeance. But some humans are too dangerous to be allowed existence among us.
    TFG is not one of them. A clown who has done us all a favor by reveling the 30% deplorable fools that live among us everywhere. A danger to democracy but not as big as the 60% that only play when their interests are on the line. Justice IMO would be best served by convicting his quislings and let him continue to parade around.

    Liked by 1 person

    1. For those humans “too dangerous to be allowed existence among us,” Richard, there is life in prison without parole. As to your point about trump and his quislings, I don’t think justice would be served by punishing the lesser offenders and letting the Felon-in-Chief “continue to parade around.” That’s what the 11th Circuit ruling just affirmed: even former Presidents are not above the law.

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  9. Trump is not the POTUS. He is a private citizen with no more rights to government documents, classified or not, than you or I. On January 20, 2021 he became a private citizen. Any illegal activities he was involved with after that day have nothing to do with his duties as president.
    Failure to properly investigate his actions, which I believe to be illegal, would be a miscarriage of justice. It would enforce the common perception that folks in power or with some celebrity status are not subject to the law.
    If the prosecutor determines there is evidence of a crime, he has one responsibility. Indict and charge.
    Trump has two options. Plea deal or go to trial.
    Whether he may or may not be convicted or acquitted is irrelevant.

    Liked by 4 people

    1. That justice isn’t evenhanded is a valid perception. The legal system treats white collar crime lightly. Driving while black shouldn’t be a crime, but effectively it is. DJT and many others have demonstrated repeatedly that wealthy people can dodge the sheriff indefinitely.

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      1. With that point, William, I’m in complete agreement. However, I do think that Garland and his top two people—Vanita Gupta and Lisa Monaco—have demonstrated that they’re devoted to the best and most equitable applications of the law. And Jack Smith seems to fit that pattern.

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  10. I think this is someone who will get things done. But I doubt it will be “soon enough” to suit the Trump-hating public. We’ll need to be patient.

    And every time I read “Jack Smith,” I keep picturing “Jack Sparrow,” which would make the hearings a lot more entertaining.

    Liked by 3 people

  11. This is the rule of law in action, along with the avoidance of even the appearance of impropriety. It’s the way the US is supposed to do these things. I am confident that justice will be served. Indeed, he seems to be expediting it!
    A neat thing, I think; my uncle Jack Smith was one of the original antifa in the USMC during WWII, when he served overseas. It seems kinda neat, because he was a great guy and a proud Marine.
    As to my tardiness, I apologize. I was away from email until later yesterday, opened this page along with several others, then had to close some of the tabs and go to bed. Today I began with the most recent email, going back to get to this. Thanks, Annie, for all you do!

    Liked by 2 people

    1. There’s a great deal of understandable skepticism among the American public, Matthew. I do think there are just too many avenues of hot investigations now for the Felon-in-Waiting to escape any longer.

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