Jack Smith Is a Fanatic

J ack Smith is, almost surely, a fanatic.

By that, I don’t mean he’s a committed progressive ideologue. Partisan politics is almost beside the point. Rather, he is in all likelihood a Liz Cheney–style zealot driven by a burning hatred of Donald Trump and all he represents.

Now, zealotry is not always a bad thing, and, needless to say, there is much to hate in how Trump conducted himself after the 2020 election.

It’s understandable to feel that he is skating after having committed a grave offense against the American republic. Impeachment ultimately failed, and the political process hasn’t shown any sign of making him pay a price — he’s the strong front-runner for the GOP nomination and, if he’s the nominee, would have some serious chance of getting elected president again.

It’s a little as if Aaron Burr had maneuvered to steal the presidency out from under Thomas Jefferson in 1800, shot Alexander Hamilton, got acquitted in a subsequent treason trial, and, instead of having to leave for an ignominious exile in Europe, became the leading candidate for the Federalist presidential nomination in 1808.

So, it’s an understandable temptation to try to make up for what the second impeachment didn’t do and what ordinary politics hasn’t done, with a prosecution that puts the Justice Department on the record about the enormity of Trump’s post-2020 actions and either dents him in 2024 — with the expense, distraction, and political embarrassment of a major criminal trial — or, if all goes as planned, puts him in jail.

Everything points to Jack Smith feeling this way.

If there’s a case against a given target that seems open and shut and has already been indicted, why would a by-the-books prosecutor go out of his way to make an additional indictment in another case that may be legally defective, and at the very least very risky — unless he feels an extralegal motive?

Indeed, Smith couldn’t leave it at the classified-documents case, a clean prosecutorial hit that lacks the political and historical moment of the election case. So he has stretched — to the limits of the law and quite possibly beyond — to indict Trump’s alleged post-election crimes as well.

Smith didn’t hide how he thinks about the matter in his public statement about the indictment. It was a passionate condemnation of the Capitol riot that wouldn’t have been out of place from a member of the January 6 committee, despite the fact that he isn’t charging Trump with anything related to the riot.

An emotional investment in making Trump pay is not conducive to dispassionate legal judgment.

At a time when the Supreme Court has been engaged in the process of narrowing the definition of fraud for decades and federal fraud prosecutions have been falling apart all over the land, Smith proposes to make the most adventurous, consequential fraud case in American history.

I’m not even a country lawyer, but how is that supposed to work?

This has all gotten tangled up: Trump was impeached for a crime that he didn’t commit — incitement of an insurrection — and now is being prosecuted for political offenses that may not be crimes.

If Smith prevails, it will be at the cost of creating precedents that will tend to criminalize other political matters (should President Biden be able to walk free after defrauding the government with his student-loan-forgiveness scheme?), making our politics more fraught and divisive and our justice system more overtly political. The indictment points to a world where it’s increasingly difficult to disentangle politics from the question of who should go to jail. Trump started us down this path (“lock her up”), and his adversaries want to take the next step — by literally locking him up.

Perhaps none of these considerations would matter particularly if the legal merits of the latest indictment were airtight and compelling. They aren’t, and one suspects that Smith is allowing a sense of righteousness to compensate for the legal deficiencies in his case.

If so, this isn’t just law, but an exercise in single-minded devotion to a cause.