Dear Reader,

I don’t often talk publicly about my basketball career but here goes.

In college, I led Rutgers University to three straight Final Fours, including a national title on a half-court buzzer beater to topple those preppies from Duke. I left a year early to go pro and proceeded to take the Sixers to the NBA crown, averaging 31 points and a triple double as we blasted past Bird and the Celtics, MJ and the Bulls, and then Magic and the Lakers. I suppose I should mention that I accomplished all this while shooting alone on my neighbor’s hoop. Get me into a real game with actual humans playing on the other team, and I was more of a six points-per-game YMCA rec-league type. Turns out it’s much easier to play one-on-zero.

Like me on the hardwood, Jack Smith was a prosecutorial force when unopposed, undefeated when uncontested. But put him on (or in) the court, with a judge and defense team and political reality standing in the way, and he’s produced tepid results.

In that sense, Smith’s official report is a fitting capstone to his tenure as special counsel. He kicked Trump’s ass, one more time – but only on paper. Meanwhile, the subject remains untouched as he prepares to take the presidential oath of office next week.

Smith’s decision to draft a final, full-blown narrative was legally appropriate and necessary. Under the regulations, the special counsel “shall provide the Attorney General with a confidential report explaining [his] prosecution or declination decisions.” The AG, in turn, has discretion over whether and how to disclose the report to Congress or the public, though Merrick Garland had previously made clear his view that any AG ought to turn over such reports immediately.

Trump and his team staged a desperate, frivolous legal effort to delay publication of the report, plainly with an eye towards squashing it once he re-takes the presidency next week. But when Judge Aileen Cannon – who has largely ruled in Trump’s favor throughout the case – rejected the emergency requests twice in one day, the jig was up. Shortly after the clock struck midnight on a pre-existing injunction, DOJ let the report fly.

Like much of Smith’s prior written work, the report makes a compelling case based on an exhaustive investigation and a solid foundation of facts. There are no startling new revelations, but that shouldn’t undermine the power of the evidence laid out by the prosecution.

All told, Smith has articulated his (largely unrealized) case against Trump in extraordinary depth. In addition to the final report, he has drafted two indictments detailing his theory of criminality and the supporting evidence. Just weeks before the 2024 election, Smith submitted a 165-page narrative omnibus plus 1,800-plus pages of exhibits, contained in four volumes. And he filed reams of other pre-trial briefs and documents fleshing out the case against Trump. The factual record is substantial.

That matters, but it’s a bit of a consolation prize. Because Smith was decidedly less successful when faced with meaningful opposition in the courtroom. And his failures typically resulted from his oft-celebrated, hyper-aggressive litigation tactics.

Early on, for example, Smith sought a gag order on Trump that was so preposterously overbroad that the razor-sharp Judge Tanya Chutka narrowed it substantially – and the Court of Appeals later trimmed it down even more. Smith requested an initial trial date of January 2024, just five months after indictment, notwithstanding that the average case in the district court in Washington DC takes over 28 months from indictment to verdict; of course, that trial never happened at all. Smith asked the Supreme Court to fast-track the immunity issue, yet he refused to provide a specific justification for his need for speed; the Supreme Court accordingly declined the emergency motion. Later, the Court resoundingly rejected Smith’s original indictment based on immunity principles, sending him scrambling back to the drawing board, never to recover. As I’ve written before, the Court’s decision was unduly broad and confoundingly vague. But like it or not, it’s the law now, and it was a setback for Smith (and for future prosecutors).

Smith’s final report encapsulates the fundamental problem with his prosecutorial approach. His statement of the evidence is all business, and compelling. And while it’s standard for a special counsel to take a moment to thank his hardworking, honorable, nonpartisan team members, Smith goes far beyond that. He opens the report with a strident, defensive four-page letter in which he quotes John Adams and renowned attorneys general Edward Levi and Robert Jackson; congratulates himself repeatedly and in conclusory fashion for his own bravery in upholding the rule of law, as he sees it; and huffs that certain public criticism of the case is “laughable.” It’s impossible to read Smith’s opening diatribe and conclude that everything that follows is the result of an entirely dispassionate inquiry.

Part of the larger problem is that Smith arrived as special counsel in November 2022 with outlandish public hype. Hopeful memes proliferated from those who quickly forgot the lessons of Robert Mueller action figures. One play on the Jaws movie poster featured Smith’s grinning, bearded visage looming under the water, looking up at an image of Trump floating on the surface, under the title “LAWS.” Others portrayed Smith as a caped Superman and as a sheriff wearing a badge reading “KARMA.” A former colleague of Smith’s tweeted that he (the colleague) was sometimes 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 came largely as advertised. In the courtroom setting, he kept the aggression odometer pinned to its max. But Smith’s approach, heavy on bravado and snarling menace, ultimately yielded lackluster results.

And in the broader view, should Smith be lauded for his tactics? When Pam Bondi takes over as AG in a few days, do we want her to emulate Smith? Should we celebrate if she takes the position set on attack mode? Should she approach the job like some hyper-aggressive uber-pitbull?

Smith’s investigative findings about Trump and January 6 will stand as a valuable part of the historical record. So, too, will the rejection of his prosecutorial tactics by the courts and, to an extent, the American voting public. Left to his own devices, Smith was a legend. But in the well of the courtroom, he was decidedly less.

Stay Informed,

Elie