The expected release of Special Counsel Jack Smith’s report will occur as early as this weekend, albeit without those sections dealing with the Florida documents case. (Other defendants are still facing prosecution in that case.) However, the most glaring omission will be arguably an explanation of how Smith lost this war without firing a single shot in a trial.
After more than two years, two separate cases and countless appeals (not to mention more than $50 million spent), Smith left without presenting a single witness, let alone charge, at trial. It is an example of how a general can have the largest army and unlimited resources and yet defeat himself with a series of miscalculations.
History probably won’t be kind to Smith, whose record bespeaks a “parade general” — a prosecutor who offered more pretense than progress in the prosecution of an American president.
Indeed, this report will be one of Smith’s last chances to display a case that notably never got close to an actual trial. One-sided and unfiltered, it will have all of the thrill of a Sousa march of a regiment in full dress. We know because we have seen much of this before. At every juncture, Smith has taken his case out on parade in the court of public opinion.
The Smith report will reportedly concern only the Washington case alleging crimes related to Jan. 6 and the 2020 election — a case that was always a bridge too far for Smith.
When first appointed, Smith had a straightforward and relatively easy case to make against Trump over his removal and retention of presidential materials. The case was not without controversy. Some of us questioned the selective nature of the prosecution given past violations by other presidents, particularly as shown by the violations of President Biden going back decades found by another special counsel.
However, the case originally focused on the conspiracy and false statements during the federal investigation into the documents at Mar-a-Lago. Those are well-established crimes that Smith could have brought to trial quickly with a solid shot for conviction.
But Smith’s undoing has always been his appetite. That was evident when he was unanimously reversed by the Supreme Court in his case against former Virginia Gov. Bob McDonnell (R).
In Florida, Smith was in signature form. He took a simple case and loaded it up with press-grabbing charges regarding the retention of classified material. In so doing, he slowed the case to a crawl. As a defense lawyer who has handled classified documents cases, I said at the outset that I did not believe he could get this case to a jury before the 2024 election, and that after that election, Smith might not have a case to present. Smith had outmaneuvered himself.
Then came the Washington filing, the subject of this forthcoming report. It was another vintage Smith moment. Smith played to the public in a case that pushed both the Constitution and statutory provisions beyond the breaking point. He simply could not resist, and he was only encouraged after the assignment of Judge Tanya Chutkan, a judge viewed by many as predisposed against Trump.
In a sentencing hearing of a Jan. 6 rioter in 2022, Chutkan had said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then, “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was then brought to her for trial by Smith.
The D.C. case was doomed from the outset by both a prosecutor and judge who, in their zeal to bag Trump, yielded to every temptation. As time ticked away, Smith became almost apoplectic in demanding an expedited path trial, including cutting short appeals. After refusing to recuse herself, Chutkan seemed to indulge Smith at every turn. But the Supreme Court failed to agree that speed should trump substance in such reviews.
With both cases slipping out of his grasp, Smith then threw a final Hail Mary. He asked Chutkan to let him file what was basically a 165-page summary of this report against Trump before the election. There was no apparent reason for the public release of the filing, except to influence the election — a motivation long barred by Justice Department rules.
Chutkan, of course, allowed it anyway, despite admitting that the request was “procedurally irregular.”
It did not work. Although the press and pundits eagerly repeated the allegations in the filing, the public had long ago reached its own conclusion and rendered its own verdict in November.
In my view, Smith’s D.C. case would never have been upheld, even if he had made it to a favorable jury in front of a motivated judge. As established by the court in Trump v. United States, Smith could not rely on much of his complaint due to violating constitutionally protected areas.
Smith responded to the immunity decision again in typical Smith fashion, largely keeping the same claims with minimal changes. His new indictment was to indictments what shrinkflation is to consumer products — same package with less content. As in the McDonnell case, Smith was going for conviction at all costs, despite a high likelihood of the case being eventually overturned.
Then the public effectively put an end to both cases by electing Trump.
The Smith investigation should be a case study for future prosecutors in what not to do. An abundance of appetite and arrogance can prove as deadly as a paucity of evidence and authority.
Ironically, Smith will not be the other special counsel offering such a cautionary tale. The report of Special Counsel David Weiss into the Hunter Biden controversy will also be released soon. Weiss was widely denounced for allowing major crimes to lapse against Hunter Biden and offering an embarrassing sweetheart plea deal that collapsed in open court. Ironically, Weiss succeeded by minimizing his charges (for the wrong reason). In that way, Weiss has one claim that Smith does not: He made it to court and secured a conviction. Indeed, he was about to prosecute a second case when President Biden pardoned his son.
Weiss’s report will likely only increase questions over his failure to pursue Hunter more aggressively. For Smith, the question is whether he was too aggressive, to the detriment of his own prosecution.
Prosecutions are not the sole measure of success for a special prosecutor. At times, the report itself can be of equal, if not greater, importance to the public.
This is not one of those cases.
The public will be given Smith’s detailed account of a case that was never brought and would likely never have held up. At more than $50 million, it is arguably the biggest flop since “The Adventures of Pluto Nash.“ The difference is that it did not take more than two years to watch Eddie Murphy’s film disaster, and the actor did not then write up a report on how good the movie really was.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”
