Jack Smith’s Best Protection Against Prosecution Could Be the Evidence Against Trump He Never Presented in Court

President Trump’s repeated calls for the prosecution of Special Counsel Jack Smith appear to be falling on deaf ears at the Department of Justice — at least so far. The fate of the special counsel has emerged with renewed salience after he accused, at a private dinner at the Cosmos Club, the 47th president of having “corrupted” the DOJ. That language is the harshest yet from the prosecutor, who has become increasingly critical of the president he twice failed to convict. Mr. Smith reportedly reckons it “likely” that he will face prosecution. He said as much during testimony before Congress in January, where he ventured that the lawyers of the Trump Administration would “do everything in their power” to prosecute him “because they have been ordered to by the president.” Shortly after that testimony Mr. Trump declared that “there is no question that Deranged Jack Smith should be prosecuted for his actions because he “destroyed the lives of many innocent people.”One Democrat, Congressman Jamie Raskin, told Mr. Smith at that hearing that Mr. Trump “says you belong in prison not because you did anything wrong, mind you, but because you did everything right.” During that testimony, Mr. Trump posted to social media that “Hopefully the Attorney General is looking at what he’s done.” That was directed at the previous attorney general, Pam Bondi. America’s current top law enforcement official is the acting attorney general, Todd Blanche. Last month Mr. Blanche, who previously served as a defense lawyer for Mr. Trump, declared “What we’ve been doing for the past 14 months is changing this department. People say the president wants to go after his political enemies. No, the president has said time and time again that he wants justice.” Mr. Blanche allowed that the DOJ’s investigations “involve men, women and entities that the president, in the past, has had issues with and believes should be investigated. That is his right, and indeed, it is his duty to do that.”Mr. Blanche has indicated that the Department of Justice is considering moving against two other prosecutors who have pursued Mr. Trump — the district attorney of Fulton County, Fani Willis, as well as Manhattan’s district attorney, Alvin Bragg. A second indictment has already been secured against the former director of the FBI, James Comey — for an Instagram post that the government alleges spelled out a threat to the president with seashells arranged on sand.One challenge the government could be facing with respect to building a case against Mr. Smith is that it is not immediately clear what crime he can be alleged to have committed. On Ms. Bondi’s first day in office she assembled a “Weaponization Working Group” to probe Mr. Smith’s work, but no charges have emerged. Senator Tom Cotton has alleged that the timing of Mr. Smith’s prosecutions violated the Hatch Act, which aims to prevent federal employees from influencing elections. The Hatch Act, though, is a civil and not a criminal statute.Another deterrent to seeing an indictment against Mr. Smith, though, could be a wariness to offer the prosecutor the opportunity to pry open the lid of his own Pandora’s Box. The Times reckons that “Mr. Smith still could inflict damage on the president by revealing unreleased evidence. He appears unfazed by the prospect of shifting from accuser to accused.”One indication that the Trump Administration would like to mute Mr. Smith’s microphone is its effort — successful so far — to block the special counsel’s final report on his Mar-a-Lago case. Judge Aileen Cannon of South Florida ruled that the dispatch must remain under seal even after she found that Mr. Smith was unlawfully appointed and dismissed the charges against Mr. Trump and his two co-defendants, Waltine Nauta and Carlos De Oliveira. Judge Cannon accuses Mr. Smith of engaging in a “brazen stratagem” to complete the report even after she disqualified him. While the document is now “permanently blocked,” that ruling is being appealed to the 11th United States Appeals Circuit. If Mr. Smith is prosecuted in connection with either of his two cases — or both of them — he will have the opportunity to present evidence as part of his defense.

Jack Smith’s Best Protection Against Prosecution Could Be the Evidence Against Trump He Never Presented in Court

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