Elise Stefanik v. Jack Smith

Congresswoman Elise Stefanik, having made short work of the presidents of Harvard and the University of Pennsylvania, is now squaring up to a more formidable foe — Special Counsel Jack Smith. The latest from the fourth-ranked Republican in the House is aimed at the judicial jugular. It accuses Mr. Smith’s prosecutions of President Trump of being political. It amounts to an allegation of election interference — from the White House.Ms. Stefanik’s move against the special counsel takes the form of an ethics complaint filed with the DOJ’s Office of Professional Responsibility. She decries the special counsel’s abuse of the “resources of the federal government to unlawfully interfere with the 2024 presidential election” and zeroes in on his “multiple attempts to rush to trial the federal January 6th case against President Trump.” She wants Mr. Smith to be disciplined. The congresswoman declares that Mr. Smith is in violation of that part of the DOJ Manual that mandates that a federal prosecutor “may never select the timing of any action . . . for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” The solon points to junctures where Mr. Smith petitioned courts for expedition. He called his rush “compelling.” For whom, though?Mr. Smith has heard this argument before. His response is that the DOJ interdicts only charging decisions, not, say, the cadence of litigation once it is already underway. Ms. Stefanik has an answer for that — the DOJ’s plain text. The Justice Manual refers to “any action” by “federal prosecutors and agents,” “including” (but not limited to) “investigative steps, criminal charges, or statements.” That sounds like a catchall if there ever was one.Ms. Stefanik notes an anomaly that doubles as a giveaway. In all of Mr. Smith’s reams of filings, much of which concerns deadlines and arguments for acceleration, he never once cites the upcoming election as motivation. The congresswoman explains that the reason is because it is “an obviously improper reason to expedite President Trump’s trial” even as she has “no doubt that the election is driving his timing decisions.” That is no less salient for being obvious. We’ve previously pointed out that some politicians have been pursued criminally even as they’re running for office (Congressman Dan Rostenkowski, say). Yet the scheduling between Mr. Trump announcing his candidacy for the 2024 Republican nomination on November 16, and Attorney General Garland’s appointment of a special counsel to go after him on November 18 is, in our view, gobsmacking. Ms. Stefanik does not mention, but could have, that Mr. Smith has no constitutional right to a speedy trial. That is given solely to the “accused,” in this case Mr. Trump. Yet in one of the special counsel’s briefs, we counted six claims to his own “compelling” interest in the timing of the trial. Under due process, politics are supposed to stop at the courthouse door. Now comes Elise the Enforcer to mark that feature of American bedrock.

Elise Stefanik v. Jack Smith

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