• Show Notes

Dear Reader, 

There’s one word we will never, ever, hear Jack Smith say out loud: Election.

It’s obvious by now to any sentient earthling that Smith is possessed with trying Donald Trump before the approaching November 5, 2024 crucible. Throughout the Special Counsel’s DC-based January 6 prosecution of the former president, his primary tactical objective has been to beat the election clock – but he’s never acknowledged this plain truth in any of his public statements or court filings. Smith’s refusal isn’t just some semantic peccadillo; it undermines the Justice Department’s rote, conclusory mantra that the Special Counsel is entirely above the political fray.  

Exhibit A: Smith originally insisted on trying Trump in January 2024, just five months after the indictment dropped – an absurd request, given that the defense team must review over 13 million pages of documentary evidence and thousands of hours of video footage provided by prosecutors. By comparison, the run-of-the mill federal conspiracy defendant typically gets over two years to prep for trial. Several January 6 rioters, caught cold on video committing stupidly simple crimes at the Capitol (assault, trespass, and the like) had triple the lead time afforded to Trump, who faces vastly more complex charges. To support his urgent request, Smith offered lawyerly bromides seemingly crafted by a PR consultant – “an appropriately speedy trial in the public interest and in the interests of justice” – but said nothing of the real-world impetus, the election. Judge Tanya Chutkan, nearly as concerned with jamming in a Trump trial before the election but not quite as fanatical as Smith, set trial for March. 

Exhibit B: When Trump raised his (likely doomed, but not quite frivolous) claim of presidential immunity, Smith asked the Supreme Court to take the case straight from the District Court, skipping over the mid-level Court of Appeals – a rare procedure known as “direct review.” The problem for Smith, however, was that he was unable (or, really, unwilling) to articulate precisely why he needed this extraordinary remedy. Rather than stating the screamingly obvious, he resorted to wink-wink generalities about the “public interest in a prompt resolution” – but, again, he refused to say the E-word out loud. The Supreme Court denied Smith’s request, with no explanation.

Trump is, of course, hellbent to slow things down. But delay tactics are within the rules of the game, entirely commonplace, and eminently foreseeable; virtually every defendant plays stall-ball, particularly if he’s been short-changed on pre-trial prep time. For Smith to bemoan Trump’s tactics is like an NFL coach complaining that the other team’s defense keeps trying to sack his quarterback. 

We’ve got two overarching issues here. First, is it proper for Smith to consider the election date? And second, if it is, why not just say so?

As to the former question, there’s a pervasive and quite reasonable view that, yes, Smith absolutely should do his damndest to try Trump before the election. I get that; putting myself back at the prosecutor’s table, I’d probably do the same. But problems surface when we dig into whether that’s a proper, non-political exercise of prosecutorial power. Why exactly must Smith try Trump before the election?

Well, one line of argument goes, the American public needs to know before November whether it’s about to vote for a convicted felon (or, perhaps, somebody who’s been cleared). Problem is, the Justice Manual, DOJ’s official guidance to all prosecutors, instructs that “[f]ederal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.” Doesn’t a prosecutor defy that core principle if he’s concerned about what voters know about a candidate, and when, and how that might influence their votes? God knows, prosecutors have almost unimaginable power as is, even when they stay in their lanes. Who appointed Jack Smith ruler of what the American voter must know before they head to the polls?

Then there’s the practical argument that if Trump wins back the White House, he will tank Smith’s cases. That’s undoubtedly true; Trump surely will order his AG (Rudy? Sidney Powell? Don’t laugh) to dismiss the indictments, and he might issue the first-ever self-pardon for good measure. (We don’t know if a self-pardon is legal  – but who’s going to challenge it, Trump’s own DOJ?) The problem with this rationale is that it implicitly holds that Smith’s job is to stop Trump from becoming president again, so Trump won’t gain the power to throw out the cases. But if Smith’s goal is to prevent his subject from winning an election – that’s just straight up, blood-and-guts political.

Smith is in a tough spot, and it’s largely not his fault. Merrick Garland dithered away a year and a half — during which DOJ staffers reportedly were wary of even uttering Trump’s name in the AG’s presence — before he appointed Smith as special counsel. Now Smith has to deal with a compressed calendar, while jostling for position with three other prosecutions (his own Mar-A-Lago classified documents case, plus state indictments out of New York and Georgia). 

Smith has three options. First, he can adhere to the platonic ideal of the non-political prosecutor by simply letting the case play out in its normal course, without regard to Election Day. It’s lovely in theory, perfectly harmonious with the Justice Manual and the non-political prosecutorial ideal — but it’s also doomed. If Smith takes the high road, then both his cases will get blown out past the election and might die on the vine altogether (if Trump wins). 

Second – this is where Smith currently resides – he can fight like mad to get Trump tried before the election, but refuse to acknowledge it. But that’s sneaky, fundamentally dishonest, and counter-productive (see Smith’s failure to identify a specific need for the Supreme Court to take expedited review, above). Trump’s rhetoric about witch hunts and politically-driven prosecutors is tiresome, overblown, and dangerous. But if Smith is acting with an eye to Election Day while sanctimoniously pretending he’s doing no such thing, then there’s a kernel of truth to it. 

Third, Smith could (and in my view, should)  just come out and acknowledge what we all know: he wants to get Trump tried before the election. If that makes Smith less than prosecutorially pure, so be it. Sure, Trump will cry foul, but he’s already doing that anyway. Why lend fuel to Trump’s inflammatory rhetoric with a bogus denial of an obvious reality? How about the truth: Yes, I’m trying to get this case done before the election because we’ve charged him with a historically serious crime, and the American public needs to know before they vote. 

This issue will come up again. Trial court proceedings have been on hold pending Trump’s immunity appeal, so the judge likely will have to set a new trial date at some point, and Trump will continue to request postponements until the moment the jury is sworn in. Smith needs to drop the transparent, holier-than-thou venire. This is a bizarre and unprecedented scenario, and there are no easy solutions. Smith wants his case tried before the election, for reasons that are uncomfortable but also compelling and unavoidable. He should just say so.

Stay Informed,