JACK SMITH IS IN A HURRY, BUT HE CAN’T SAY WHY. You’ve read it in this newsletter here and here, but it has popped up again. Jack Smith, the federal prosecutor pursuing former President Donald Trump, is again urging a court to speed up procedures in Smith’s case charging Trump in connection with the 2020 election and Jan. 6.
On Tuesday, the Supreme Court gave Smith one week to respond to Trump’s effort to keep his 2020 election trial on hold while the court decides on Trump’s argument that he should be immune from prosecution. Smith responded in one day. His argument is that it is very, extremely, super-duper important that Trump’s trial move ahead as quickly as possible. Of course, it has been clear for some time that Smith feels that way. What is important is why Smith says the Trump case should speed ahead.
The reason for Smith’s haste has been obvious all along: He wants Trump to be tried, convicted, sentenced, and possibly jailed before the Nov. 5 presidential election. Could anything be clearer? Everything that Smith has done since Aug. 1, 2023, when the indictment was unsealed, has been to rush the case to a decision before deadline — and the deadline has always been the 2024 presidential election.
But here’s the problem for Smith. The Justice Department forbids prosecutorial interference with elections. The guidelines are very clear: “Federal 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, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
It is now Feb. 15. The South Carolina primary is on Feb. 24, followed by the Michigan primary, followed by Super Tuesday. Trump has already won Iowa, New Hampshire, and Nevada and is the prohibitive favorite to win the Republican presidential nomination. Trump is also leading President Joe Biden in the RealClearPolitics average of national, head-to-head polls. So it is fair to say that so far in this election year, Trump is the leading candidate to be the next president of the United States. And Jack Smith is frantically trying to put him in jail before the election.
That might, just might, be what the Justice Department intends to prevent when it says federal prosecutors “may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.” That is a bad thing, and Jack Smith is doing it.
What’s fascinating in Smith’s new filing is that he does not say a word about his motive. He totally, completely ignores the 2024 election. Doesn’t mention it. Does not mention his race to try and convict Trump before the election. He acts like it just isn’t there.
Instead, Smith urges the Supreme Court to hurry because, he said, the public has a “compelling interest” of “unique national importance” in a speedy trial. He said there would be “serious harm to the government — and to the public — [in] postponing the resolution of the criminal charges.” Why would that be? He says delay can lead to problems with the case. “Witnesses may become unavailable or their memories may fade,” Smith said. “There is a national interest in seeing the crimes alleged in this case resolved promptly.” The public, Smith continued, has a “compelling interest in a prompt disposition of the case.”
To read Smith, the 2024 election, which has everything to do with Smith’s rush to prosecution, has nothing to do with Smith’s rush to prosecution.
Now others are beginning to criticize Smith. After Smith’s latest filing, Jack Goldsmith, a law professor at Harvard University and a Trump critic, wrote, “This rush violates Justice Department rules. The Supreme Court now faces the question whether it too will be a party to this rush and, if not, how it will avoid it.”
“If this were any other defendant than Donald Trump, the rush to trial — which cannot possibly give the Trump legal team adequate time to prepare its defense — would be deemed wildly unfair,” Goldsmith wrote. “Smith’s timing decisions clearly have a ‘purpose of affecting’ the presidential election, at least in the sense of wanting the American people to have the benefit of his evidence and the jury’s verdict before voting in November.”
People who approve of Smith’s rush say that’s an important point. Sure, Smith is asking courts to cut corners, but people need to know the verdict before they vote for Trump. Responding to criticism of Smith on X, the Democratic activist lawyer Bradley Moss wrote, “You would rather the public be deprived of a legal conclusion before they go to the voting booth? Americans should be forced to adjudicate guilt or innocence on their own without the benefit of an actual trial with full witness testimony?” It is hard to imagine a more political response to the legal questions Goldsmith and others have raised about Smith’s haste.
Finally, Goldsmith considered the Left’s doomsday scenarios about Trump. Say Trump does not face trial before Election Day, is elected, and then embarks on an authoritarian campaign of revenge against his rivals. If that happens, won’t people wish Trump had gone on trial before the election so people could have seen the case against him and not voted for him? Of course Goldsmith finds that a troubling scenario. But he also finds it troubling that Trump could be rushed to trial, convicted, and then, partly as a result of that rush to judgment, lose the election:
Let’s assume the worst about a Trump reelection. We should at least be aware of the possible adverse consequences of Smith’s rush to trial. They potentially go far beyond a mere violation of a Justice Department rule. If Trump is convicted and is seen to lose the election even in part because President Biden’s Justice Department violated norms in rushing Trump to trial (and in giving Trump inadequate time to prepare), then the trial, and the election outcome, could be deemed illegitimate and unfair by approximately half the country. This might happen anyway, of course, in light of the state trials and the other legal efforts against Trump, even if there is no federal trial. But the Biden Justice Department rushing to put away Biden’s political opponent is uniquely harmful.
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