The United States is about to elect its 47th president 69 days from now, and Special Counsel Jack Smith just filed a watered-down version of an indictment accusing former President and 2024 presidential candidate Trump of plotting to overturn the 2020 election.
The indictment, filed in Federal District Court in Washington, would be overseen by District Judge Tanya S. Chutkan, who has often appeared too eager to hear the case. In nearly every ruling until the Supreme Court tore apart Smith's original case, Chutkan ridiculed the Trump team and sided with the prosecution.
Jack Smith needs to learn to let go of things, especially after the courts have repeatedly rebuked his overly aggressive legal theories.
In the Supreme Court case McDonnell v. United States (2016), Smith tried to convict the former Governor of Virginia for corruption. The Court addressed the definition of "official acts" under federal bribery laws and unanimously overturned McDonnell's conviction.
In the Trump immunity case, Smith knew that the Court had broadly yielded to the Chief Executive's powers. Going back to Nixon v. Fitzgerald (1982), the Supreme Court ruled that presidents have absolute immunity from civil lawsuits related to official actions taken while in office. In Clinton v. Jones (1997), the Court ruled that while a sitting president is immune from lawsuits pertaining to official acts, they are not immune from civil lawsuits involving actions unrelated to their official duties or that occurred before taking office. This clarification does not apply to Trump because he was in office at the time of his alleged actions.
Yet, Smith tried to press ahead with the prosecution, and the Supreme Court heard his case. In its June ruling, the Court affirmed that presidents have absolute immunity for actions taken in their official role. Smith had used Trump's conversations with DOJ officials, especially with DOJ official Jeffrey Clark, as a critical part of his charges. The Court ruled, in another stinging rebuke of Smith, that a president's dealings with the department were part of his office's core official duties; and for that reason, he was immune from prosecution.
The Court also said that a president is "at least presumptively immune from prosecution" for all dealings with his vice president. However, there may be a small opening for Smith to pursue Trump in his dealings with then-Vice President Mike Pence, whom Trump allegedly pressured not to certify the election.
Jack Smith's court tactics have also drawn the ire of district judges. In the high-profile classified documents case against Trump, Judge Eileen Cannon ruled that Smith’s appointment as Special Counsel was unconstitutional as it violated the separation of powers doctrine and infringed upon the President's constitutional authority. Cannon ruled in this fashion because Congress had let the Independent Counsel Act lapse in 1997 and held that Smith couldn't prosecute his case without Congressional approval.
Smith, unwilling to let go, filed an appeal this week in the 11th Circuit Court in Atlanta to have Cannon's judgment overturned! The Cannon ruling only applies to the Florida district where the case was brought. Although the same constitutional principles are relevant, her ruling does not apply to Smith's case in Washington because of jurisdiction.
Smith filed the revised indictment in Washington, knowing that he was coming very close to the unwritten DOJ rule that prosecutors should not impact a presidential election 60 days out. [Smith managed to do so with nine days to spare]. But that unwritten, arbitrary rule of 60 days was meant for an ordinary election season. The 2024 election season is anything but ordinary. It is the most extraordinary election in American history.
In the last two months alone, Joe Biden, a sitting president, having won his party's nomination with a 98% vote of committed delegates, decided not to run for reelection but to remain in the White House. In the last two months, former President Trump and the candidate who has consistently led in the polls against Biden and Harris was subject to an assassination attempt. A bi-partisan Congressional Committee is investigating how the killer got so close to Trump and how his Secret Service security detail could even permit such a thing. In the last five weeks, Vice President Kamala Harris, who has never won a single delegate in a primary election, has been anointed Biden's heir to not only win the Democratic nomination but also assume Biden's campaign war chest to compete against Trump. The country is at war in two theaters - Europe and the Middle East - with both conflicts coming close to a nuclear confrontation.
Does anyone seriously believe the 60-day rule applies in such a precarious situation when no one knows who is running the country? Jack Smith is doing the very same thing he is accusing Trump of having done - interfering in an election.
So, drop it, Jack Smith, for the sake of the country. You have made your point by spending millions of taxpayer dollars. And you have lost both in the Courts and the court of public opinion. It is time to move on and ride off into the sunset.
