By Rich Lowry
Tuesday, July 02, 2024
Even the Democratic deus ex machina is having a bad
stretch.
No matter how favorable the presidential race has looked
for Donald Trump, there’s always been the possibility that special
counsel Jack Smith would get to trial with his January 6 case
before the election and, at the very least, dominate the news cycle for weeks
and, in all likelihood, convict Trump in a case involving more serious matters
than hush money to a porn
star.
Now that Joe Biden stumbled so badly in the first presidential debate,
lawfare is more important than ever to Democrats, but Jack Smith’s J6 case is
hanging by a thread.
Democrats blame the Supreme Court, which has undercut
Smith in two new decisions. In the belief that what the situation requires is a
futile and stupid gesture, Alexandria Ocasio-Cortez says she’s going to file
articles of impeachment against conservative justices.
Yet, it is Smith who has forced novel and sensitive legal
issues to the fore. The Biden Justice Department and Democrats may believe that
it’s the role of the Supreme Court to expedite a politically motivated, legally
dubious prosecution of a major-party presidential candidate prior to a national
election, but it’s not.
Because what Smith is doing is unprecedented, it has
raised questions that haven’t been answered before — such as, you know, whether
a former president of the United States can be prosecuted at all.
If the Biden Justice Department wanted such questions
decided well before the 2024 election, it needed to indict Trump earlier than
August 2023.
As it is, Jack Smith has been in a race against the clock
because the political usefulness of his prosecution disappears after Election
Day 2024, and if Trump wins, the prosecution itself goes away. This means that
Smith, against Justice Department guidelines, is conducting his prosecution on
a political timetable.
The Supreme Court just made his hope to get the case to a
jury sometime soon much harder by concluding that presidents have immunity for
their official acts, and some of the January 6 charges indeed involve official
acts. The obvious play for Jack Smith would be to strip his case down to
charges involving private acts, such as the so-called fake-electors scheme.
Since the Supreme Court majority said even that isn’t clear-cut, though, the
way would be open for Trump to appeal — with its attendant delays — even a more
minimal case.
The majority opinion, written by Chief Justice John
Roberts, is not unassailable, but neither is it wildly unreasonable nor going
to lead to future presidents’ droning their political opponents with impunity.
Meanwhile, two of Smith’s charges rely on a provision
passed as part of the Sarbanes-Oxley Act after the 2001 Enron scandal that
doesn’t obviously have applicability to the events of January 6. Last week, a
majority of the Supreme Court — in a decision joined by Justice Ketanji Brown
Jackson, by the way — adopted a narrow reading of the law, further complicating
Smith’s task.
It would be better if these matters of law were being
decided as abstract questions without knowing who would be affected one way or
the other before a national election, but Jack Smith has made that impossible.
A more modest prosecutor never would have gotten himself
or the country in this fix.
It is very fitting that Smith’s appointment as special
counsel may itself be constitutionally defective and is under serious challenge in the
classified-documents case he is pursuing in Florida.
By rights, he should go away. Smith represents the worst
tendency of the law-enforcement and national-security establishment since
Trump’s rise to prominence in 2016. The basic idea has been that it’s okay to
stretch or break norms as long as it’s in the cause of opposing Trump. Showing
remarkably poor judgment, Smith assumed that everyone, including the Supreme
Court of the United States, would go along.
Now that it hasn’t, he’s poorly positioned to assist Joe
Biden when he needs it most.
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