Jack Smith v. the DOJ

In pushing to try Trump before the election, is the special counsel breaking the Justice Department’s own rules?

AP/Alex Brandon
Special Counsel Jack Smith on June 9, 2023, at Washington. AP/Alex Brandon

This editorial has been updated from the bulldog.

Special Counsel Jack Smith’s request that Judge Aileen Cannon hear his Mar-a-Lago case against President Trump on July 8 arises from a desire to try the 45th president before November’s election. We are struck, though, not so much by Judge Cannon’s skepticism in respect of that timeline, warranted as it appears to be, as by the special counsel’s disregard for the guidelines of his own employer, the Department of Justice. 

DOJ’s Justice Manual, under the head of “Actions that May Have an Impact on an Election,” mandates that “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 explains that “such a purpose is inconsistent with the Department’s mission.”

It is worth marking that “never.” It would be difficult to find a clearer prohibition among the acres of federal rules and regulations. Judge Cannon challenged Mr. Smith’s deputy, Jay Bratt, on another DOJ ordinance, an unwritten one, that investigative steps against candidates not be taken within 60 days before an election. Mr. Bratt responded that because the case has already been charged, the special counsel is “in full compliance with the justice manual.”

That manual, though, speaks of “any action” that could affect “any election” for “any candidate or political party.” It is important enough to be cross-cited in another section of the manual, this one entitled “Initiating and Declining Charges — Impermissible Considerations.” Like the Ten Commandments popping up in Exodus and Deuteronomy, it merits double mention. For his part, Mr. Smith cites a “compelling” public interest in a pre-election trial. 

Federal law does take notice of “the best interests of the public,” but it is the Constitution that ordains that the right to a speedy trial is to be “enjoyed” by only the accused, not the government. Mr. Smith has represented to the Supreme Court that “the Nation has a compelling interest in seeing the charges brought to trial.” Our columnist Alan Dershowitz tells us that the all-fired rush to do so before the election has “no legal salience” whatsoever.

The Supreme Court on Monday ruled unanimously — one day before the Super Tuesday primaries — that Mr. Trump is not disqualified from the presidency on the basis of Section Three of the 14th Amendment. That, though, came via an appeal from the 45th president — it is captioned Trump v. Anderson —  who, in this civil action, was the equivalent of the “accused.” The law is necessarily more solicitous of harm to the individual than to Mr. Smith’s amorphous “public.”  

Nor is the court not bound by restrictions on the executive. Politicians have been charged in an election year — Dan Rostenkowski, say. Running for office can’t be a license for lawlessness. Still, Mr. Smith’s zeal for the courts to set aside their normal course to expedite his case suggests that November 5, 2024, is his North Star. Remember Isaac Newton, we say — “any action” begets an equal and opposite reaction. 

The New York Sun

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