In their frantic search to blame someone, anyone, for the election of the alleged proto-fascist Donald Trump, the Democratic Party establishment has overlooked one significant culprit: special counsel Jack Smith.
Smith has faced criticism from both the right and left, but neither side has fully grasped the root of the issue. Trump supporters have denounced Smith’s alleged use of “lawfare” to target Biden’s chief political opponent. Meanwhile, Democratic voters have expressed frustration with what they see as Smith’s delay — potentially influenced by Attorney General Merrick Garland — in indicting Trump soon enough to secure a conviction before the election.
If Smith had focused solely on obstruction and lying charges, the case could have gone to trial by late 2023 or early 2024, with a conviction likely.
These critiques of delay from the left and politicization from the right carry weight. However, they overshadow Smith’s fundamental misstep: his gross overcharging in two cases, including one that should never have been filed. Any experienced prosecutor knows that a streamlined, focused, and straightforward set of charges in a strong case is far more effective than an indictment that tries to do too much. Overreaching by piling on excessive charges often leads to delays and risks confusing a jury, diluting the strength of the core allegations.
Overcharging can also mask the weakness of a case. Smith’s January 6 indictment of Trump, filed in Washington, D.C., may have relied on its complexity to give a biased jury a smorgasbord of options for convicting a politician they despised on weak charges. These allegations, though thin, were emotionally charged and offered a convenient way for jurors — and, the Biden administration hoped, the nation — to pin the blame for the “insurrection” on Trump. This strategy distracted from deeper issues such as flaws in the 2020 election or glaring security failures by Democratic officials.
Smith had counted on a D.C. district court judge to refine his indictment’s overreach and present the charges in a way that appeared measured. He found that in Judge Tanya Chutkan — an intelligent yet clearly biased jurist deeply offended by the disorder of January 6. Smith was aware of the significant presidential immunity issues at play but calculated that he could craft a compelling emotional case that Chutkan wouldn’t dismiss. Instead, she would likely leave those thorny legal questions to the appellate courts to address after the election. For Joe Biden’s partisan objectives, Smith’s approach served its purpose, even if it abused the legal system.
However, the D.C. case carried a risk that eventually worked in Trump’s favor: the presidential immunity issue. The Supreme Court threw a monkey wrench in the case pretrial, before any conviction, creating significant hurdles for Smith and halting the case in its tracks.
In contrast, Manhattan District Attorney Alvin Bragg’s cartoonish prosecution over the Stormy Daniels payment highlighted another extreme. That case, widely seen as frivolous, may have done more to help Trump than harm him. Even voters with little legal knowledge could recognize the absurdity of the charges, though objections came almost exclusively from Trump’s supporters.
Between the sprawling, immunity-laden January 6 case and the vacuous Stormy Daniels indictment loomed a Goldilocks perfection: the Mar-a-Lago documents case. If handled correctly, this case was manageable, straightforward, and free from major legal ambiguities like presidential immunity. It revolved around allegations of a clear-cut crime, making it easier for a jury to grasp. The case, in short, was potential Kryptonite for SuperTrump.
What, then, went wrong with this promising line of attack? Understanding why this case faltered is critical, as it profoundly influenced the outcome of the election.
It should have been a civil lawsuit
In this case, Trump was effectively entrapped by the National Archives, working in coordination with the Department of Justice. While the entrapment may have occurred in practice, however, it did not meet the legal definition of entrapment. Trump had been gradually returning presidential documents to the Archives but wanted to retain access to certain “Russian collusion” documents for further study and copying. He also sought to keep what he considered personal items, such as a note from North Korean President Kim Jong Un. The Archives unlawfully denied Trump access to the Russian collusion documents, despite the Presidential Records Act permitting such access. And Trump had a valid argument that the Kim letter was a personal gift.
Both issues should have been resolved through a civil lawsuit. If Trump got such legal advice, he did not follow it.
The Archives’ actions escalated when its political White House liaison office sent a referral letter to the Justice Department, alleging that Trump’s handling of classified documents during his previous turnover was improper because classified and unclassified documents were sometimes stored together. Horrors! Although a minor and technical issue, this allegation provided the government with a pretext to open a criminal case. The criminal investigation, in turn, allowed the Justice Department to issue a criminal subpoena, rather than the more appropriate civil subpoena used in civil disputes.
In civil cases, it is not uncommon for litigants to challenge or even evade subpoenas, often withholding documents and resolving disputes in court. Such actions are not crimes. By framing the situation as a criminal matter, the government transformed a standard civil conflict into a far more serious legal battle.
With a criminal subpoena in place, any falsehoods or obstruction in Trump’s response could result in criminal charges. According to emails with his valet and video surveillance footage, it appears Trump may have engaged in such actions. Unlike during his presidency, Trump could no longer invoke immunity as a defense.
This case was straightforward and poised to move quickly to trial. It presented an opportunity for Biden to secure the conviction he needed to bolster his re-election campaign. Legally, the case seemed airtight. So what could go wrong? Shakespeare provides the answer in his tragedies: hubris.
Smith was not satisfied with pursuing a narrow, focused conviction. Instead, he aimed for a broad smear campaign against Trump. Smith added charges related to the mishandling of classified documents, citing their storage in a bathroom, bedroom, and even on a stage. Traditionally, charges of mishandling classified documents are reserved for cases involving the transfer of sensitive information to external parties, often with serious intelligence implications. For example, Biden’s storage of documents in his garage did not and should not have led to criminal charges.
Smith’s allegations seemed crafted to paint Trump as someone potentially retaining documents for treasonous purposes. But the strategy created unnecessary complications and delays. Questions surrounding personal effects and document declassification arose, and lawyers for co-defendant Trump aides needed time-consuming security clearances.
These factors made delays inevitable. Smith likely calculated that a trial during the campaign season would work to his advantage, even though such timing violated Justice Department norms against political influence. While those guidelines are not legally binding, it’s worth noting that the White House may have pressured Smith to pursue these tendentious allegations.
Smith overcomplicated his case
If Smith had focused solely on obstruction and lying charges, the case could have gone to trial by late 2023 or early 2024, with a conviction likely. This would have positioned Smith as a hero to the anti-Trump left and handed Biden a valuable campaign narrative. Instead, Smith, tasked as a supposedly apolitical and unbiased special counsel, opted to overcharge the case, amplifying delays and creating political fallout.
As predicted, the case slowed to a crawl due to classification issues. Trump received an unexpected boon in the form of a decision from Judge Aileen Cannon by way of Supreme Court Justice Clarence Thomas. In his concurring opinion in Trump v. United States, a case addressing presidential immunity, Thomas wrote that Smith’s appointment violated the Constitution’s Appointments Clause. Smith was not appointed with the Senate’s “advice and consent.”
Cannon, in the Mar-a-Lago case, adopted Thomas’ reasoning and dismissed the entire classified documents case against Trump. Please note that the immunity ruling emerged because Smith had brought the January 6 prosecution, which included clear immunity issues. Without that misstep, it’s doubtful the Mar-a-Lago case would have been dismissed on Appointments Clause grounds. The delays caused by Smith’s ill-advised classified documents charges further prevented the Mar-a-Lago case from going to trial.
Biden and Garland could have appointed an experienced U.S. attorney, immune to Appointments Clause challenges. But they likely understood that an honest and experienced prosecutor would neither have overcharged the case as Smith did nor pursued the shaky January 6 prosecution. That choice squandered an opportunity — however politically motivated — to harm their chief political opponent with a more straightforward Mar-a-Lago case.
Finally, the Democrat camp should realize in hindsight that its dependence upon partisan, dishonest media can be a double-edged sword. It could certainly depend on the media to hide the weakness of its criminal claims. But did the media’s slavish bias lull it into a false sense that it was invulnerable?
Smith’s deliberately designed excess destroyed decent, if insidiously entrapping, criminal charges, and in so doing enabled Trump’s return to the White House. Smith should go down in history as emblematic of a repugnant politicization of our criminal process, an attempt at authoritarian rule by law, worthy of Stalin and Beria, with no place in our democratic rule of law.