New Orleans A United States Attorney General appoints special counsels to investigate situations where independence is required and expected, so that the results can be presented to the public within a nonpartisan framework. Sometimes the results end up in a court proceeding. Sometimes they find no harm, no foul. In all instances, there’s usually a report.
When AG Merrick Garland appointed Jack Smith to investigate the role of Donald Trump and others in the January 6th insurrection at the Capitol, he made an impeccable choice. Smith has a top flight resume. He served in the United States Department of Justice as an assistant U.S. attorney, acting U.S. attorney, and head of the department’s Public Integrity Section. He was also the chief prosecutor at the Kosovo Specialist Chambers, an international tribunal at The Hague tasked with investigating and prosecuting war crimes in the Kosovo War. With his resignation early this month, you can add Special Counsel.
With Trump’s election, he argued that there was no question that a sitting president could not be indicted or stand trial while in office, so he systematically has dismantled most the cases involving Trump. Being president is the rarest and most valuable “get out of jail” card in the United States. Trump and his lawyers, many of whom he now seeks to appoint to key positions in the Justice Department, have been busy trying to prevent the release of Smith’s report, understandably. Having failed in two different courts, the AG released the 137-page document at 1AM on their website to get it done before the inauguration and the handover.
For Trump, Smith and the DOJ’s work isn’t pretty. As has been reported widely, Smith, categorically, and perhaps predictably, believes that had he taken Trump to trial, he would have been convicted. Most of the evidence has been previously documented in earlier court filings. Interestingly, the report indicates that Trump was not charged with insurrection for several reasons. The statute dates to the Civil War and hasn’t been used for 100 years, and Smith indicates there is no precedent for someone fomenting insurrection to stay in office as opposed to taking over some element of government. At the same time, Smith is clear that Trump incited the riot, partially from the defense offered by the rioters in their own trials, who consistently testified that they were responding to Trump’s call to go the Capitol and stop the certification of the election. The report is also adamant that many co-conspirators would have been charged, although with the transition that is unlikely to happen, even though they lack the immunity that Trump will now have. Smith has been silent in the face of constant verbal abuse by Trump and his people, but he found charges of political bias “laughable.”
Very serious stuff, and even though for Trump it will be water off a duck’s back. He even blamed Smith for not making it to trial, despite having spent millions on lawyers filing motions to delay the whole matter until after the election. He got what he paid for, and then blames Smith; what can I say? Even VP-elect Vance seems to understand that January 6th can’t just be swept under the rug. In a recent statement, he said rioters convicted of violence would not be pardoned. Maybe Vance has had to listen to too many stories from his House and Senate colleagues about hiding behind their desks and fearing for their lives to pretend this was no big thing.
Smith finishes his report by saying in his letter to the Attorney General, “While we were not able to bring the cases we charged to trial, I believe the fact that our team stood up for the rule of law matters, I believe the example our team set for others to fight for justice without regard for the personal costs matters.”
It’s hard to argue with that position. He’s clearly right. This is a stain on Trump and the country, more serious than his criminal conviction and his status as a felon.