Jack Smith Is an Arsonist

By Rich Lowry

Sunday, January 14, 2024

 

Jack Smith is a threat to American democracy.

 

He is blatantly seeking, as a prosecutor, to influence the outcome of the 2024 election. This is not his role and, in fact, is against Justice Department guidelines. If Smith succeeds, the consequences will be long-lasting — the special counsel will have delivered a devastating blow to the legitimacy of our electoral system, in the name of defending it.

 

Donald Trump and his allies were able to fashion a narrative of a rigged election in 2020 with much less material than Jack Smith is now going to give them in 2024.

 

He clearly is not playing it straight, and is not proceeding at anything like a normal pace. Fairly routine January 6 cases have taken longer to get from indictment to trial. There is no reason that the question of criminal immunity — a big, consequential question never taken up directly by the Supreme Court — needs to be decided with lightning-quick rapidity.

 

As Andy McCarthy has repeatedly pointed out, the right to a speedy trial belongs to the defendant, but Smith has transformed it into a prerogative of a panicked prosecutor trying to outrace the political calendar.

 

Of course, Smith has to worry that Trump will get elected again and, as president, squash the case. This was a foreseeable eventuality, though, and the Justice Department could have addressed it by indicting Trump years ago. It didn’t only recently emerge, after all, that Trump gave a speech on January 6 to a crowd that went on to storm the U.S. Capitol.

 

Once the timing of the case pushed hard up against a national election in which Trump was likely to run, forbearance would have been the proper and public-spirited course.

 

Trump didn’t shoot someone on Fifth Avenue. He engaged in unworthy and impeachable acts, but nothing that is straightforwardly criminal. There was no reason that this absolutely had to be prosecuted no matter what; at best, the case is discretionary.

 

But influencing the outcome of the election is clearly a feature, not a bug, for Smith and his minders. Rushing the case has the double benefit of getting it done before Trump is potentially in office again and acting as insurance against him becoming president again.

 

There is no way President Biden, Merrick Garland, Jack Smith, and Judge Tanya Chutkan would be going down this route if they thought doing so would help Donald Trump become president again. The legal theories would be too adventurous, or the timing would be too fraught, or those pesky Justice Department guidelines would stay their hand.

 

But nearly everyone assumes that a conviction would, at a minimum, hurt Trump’s chances and perhaps destroy them.

 

It is routinely treated as an outrage that almost every Republican raised his or her hand when the candidates were asked at the first debate if they’d support Trump even if convicted.

 

The posture of the Biden administration is, basically, it’d be really awful if you supported a felon for president, and, by the way, we are going to move heaven and earth to make your likely candidate a felon.

 

Do they really think we are too stupid to see what they’re doing?

 

Democrats fear losing the election but apparently haven’t thought about what it would mean to win this way, or maybe they just don’t care.

 

Now, if he loses, Trump won’t accept the result even if it is a strictly by-the-books affair, and his rhetoric will be angry and irresponsible. That’s on him, and is one reason why Republicans should nominate someone else. But after a conviction and a 2024 loss, Trump would have legitimate reason to complain — to wit, he was targeted in a politicized prosecution that succeeded in its goal of taking him down in a national election.

 

Smith’s prosecution would be much more consequential than, say, how Twitter handled the Hunter Biden–laptop story prior to the election in 2020. And it would, in contrast to all the fanciful allegations about large-scale cheating in 2020, be undeniably factual.

 

Imagine if, because Chutkan has to wait on a Supreme Court ruling on obstruction, the trial doesn’t start until July or August, and a guilty verdict comes down in October? Smith will have fashioned a classic October surprise. Even on the current timetable, sentencing easily could take place in October. And, outside the question of that month that is associated with last-minute game-changers, this trial will be a dominant factor all year long, with a guilty verdict — again, presumed to be an albatross around Trump’s neck — the likeliest outcome.

 

The most extreme scenario is that they actually jail Joe Biden’s opponent.

 

And how do they expect any of this to be received by the roughly 47 percent of the country that would support Donald Trump in a rematch with Joe Biden? Are these people supposed to believe in the neutrality of Joe Biden’s Justice Department, even though that’s absurd, or simply accept that this is how the system works now? Is this how it would transpire if the roles were reversed and a Trump Justice Department were going after, say, candidate Kamala Harris in a dubious, politically timed prosecution? No — such a prosecution would be taken as prima facie evidence that Donald Trump had made himself a proto-dictator.

 

Exactly how this plays out this year is impossible to predict, but what’s clear is that Jack Smith has foolishly and unnecessarily set in motion a dangerous dynamic.