As Midnight Strikes, Garland Releases Jack Smith’s January 6 Report on Trump

And the media were ready to amplify the proclamation that Trump ‘would have been convicted.’

R emarkable how harmoniously the legacy media can belt out a tune, even one that suddenly breaks out after midnight.

Just kidding, of course. There was nothing spontaneous about the public issuance of Biden-Harris Justice Department special counsel Jack Smith’s report on the January 6 (J6) case — the 146-page Volume I of his two-volume final report on the investigations of now-president-elect Donald Trump. Smith’s media megaphone was prepared for its publication in the wee hours after lapsing of Judge Aileen Cannon’s temporary restraining order — that order being the reason that the second tome, Smith’s Mar-a-Lago (MAL) report, remains under wraps.

The media was also ready with the theme for the day. With the Democrats’ house organ, the New York Times, leading the chorus, the story is that the “special counsel report says Trump would have been convicted in” the J6 case.

Are you stunned to hear that? Will this, at long last, change your opinion on the Capitol riot after a Senate impeachment trial; the collaboration of the House’s then-Democratic leadership and the entertainment industry on the first and only season of the January 6 Committee’s slickly produced prime-time hearings, voluminous final report, and vaunted referral to the Justice Department calling for Trump’s criminal prosecution; and, finally, Smith’s two-plus-year, $50 million investigation, which again told us what we already knew – namely, that Trump attempted a disgraceful soft coup in 2020 — in the course of producing multiple indictments and a forest’s worth of provocative court submissions, including one of over 2,000 pages strategically timed (as was Smith’s entire investigation) to influence the 2024 presidential election?

That would be the election Trump won despite all this — actually, it’s more accurate to say, because of all this.

No, you won’t be stunned, or even remotely surprised, to hear any of this. Let’s start with the DOJ-media theme: Smith concludes that Trump would have been convicted. Shocking? I’d wage it was the surest thing that could have been said about the exercise, the heavy breathing notwithstanding.

Federal prosecutors are not supposed to seek indictments unless they are convinced they have sufficient evidence to persuade a rational jury to find the defendant guilty beyond a reasonable doubt. If Smith didn’t think he would win, he wouldn’t have charged Trump with J6 offenses. Here, moreover, Smith had a stacked deck: a jury pool drawn from Washington, D.C., where Trump may be less popular than a pandemic, and an Obama-appointed judge — Tanya Chutkan — who was outspokenly hostile to Trump even before the case fell in her lap (just read some of Judge Chutkan’s commentary regarding her share of the nearly 1,600 J6 defendants charged by the Biden-Harris DOJ in the effort to make the “insurrection” look like a 9/11-dimension terrorist attack).

And so what if Smith thinks he would have nailed his quarry? In every press release the DOJ puts out in connection with criminal charges, it acknowledges that an indictment is not evidence and that the defendant is presumed innocent unless and until he is found guilty beyond a reasonable doubt at trial. If a prosecutor’s allegations, even amplified by his one-sided proffer of the evidence, counted for anything, there’d be no need for judges and juries and all that inconvenient due process — cross-examination, presentation of a defense, burden of proof placed wholly upon the government — that Smith’s report elides.

Now, let’s be clear about what that means . . . and what it doesn’t. The president-elect, after all, is dancing on the now-resigned Smith’s prosecutorial grave, claiming that he was totally exonerated because the special counsel’s investigation resulted in a big fat zilch in the column that matters most: convictions.

Trump’s exoneration claim is wrong. The evidence outlined in the report (which, again, just repeats what we already saw in the proffer Smith submitted to Chutkan three weeks before Election Day) documents disqualifying behavior by a then-sitting president in political and moral terms. Trump was impeached over it. Although the House did a lousy job investigating and pleading the impeachment article (“incitement of insurrection,” an elevation of Democratic political messaging over proof), Trump did deserve to be impeached, removed, and disqualified over: (a) the baseless claims of outcome-determinative voting fraud; (b) the unseemly executive pressure on state officials, Congress, and the vice-president to endorse the baseless claims; (c) the encouragement of a mob to descend on Capitol Hill (and even though Trump half-heartedly encouraged his supporters to be “peaceful” and “patriotic,” it is impeachable conduct for the chief executive to encourage a rambunctious political protest on Congress’s turf); (d) Trump’s persisting in public messaging about Pence’s supposed betrayal after the riot started; and (e) the then-president’s failure, for hours, to use his undeniable influence to induce the rioters to stand down and leave the Capitol grounds.

Smith’s problem was not that evidence of egregious presidential misconduct was lacking. It was that he is (or was) a prosecutor, not Congress. He could not address political wrongs in a political forum, as the Constitution empowers the Article I political branch to strip power from the chief executive of the Article II political branch. Smith could only address Trump’s wrongs in the criminal-justice process. In that non-political forum, unlike in impeachment, Trump was presumed innocent and entitled to every bounce of the ball.

More to the point, the very thing that made Trump’s conduct impeachable — namely, his abuse of executive authority — made it nigh impossible to prosecute. Outside the context of treason and bribery (which the Constitution makes separate grounds for impeachment), presidents frequently abuse their powers without violating criminal statutes. As the Supreme Court explained in its July 1 immunity ruling in the J6 case (Trump v. United States), prosecutors — i.e., inferior executive officers — have no authority to assess the chief executive’s motives in exercising his lawful powers; if the president is doing something Article II and federal law authorize him to do, a prosecutor may not transform the act into a crime by inferring, even correctly, that the president’s designs are corrupt.

That doesn’t make the president’s designs legitimate; it just means that, in our constitutional framework, the prosecutor is not the appropriate official to condemn them. That is Congress’s job. Prosecution in court is not a substitute for an impeachment that Congress is too politicized, craven, or inept to carry out.

Not surprisingly on this point, Smith’s final report features the same failings as his October proffer to Judge Chutkan. He puts his own narrowing spin, or otherwise ignores, the Supreme Court’s immunity decision.

Notice the sleight of hand. After the Supreme Court rendered its immunity decision, and especially after it became clear that Trump would win the election, Smith knew that he would never try Trump in court. He, therefore, proffered his case to Chutkan as if he, Jack Smith, rather than the Supreme Court, were the final arbiter of what constituted immune official acts of the presidency and what, by contrast, were prosecutable private acts. In this, the prosecutor did exactly what the Trump Court held could not validly be done: Smith looked behind Trump’s ostensibly legitimate presidential acts — the pressure on state legislatures, the pressure on state election officials, the pressure on the vice president, and so on — and decided that, because Jack Smith was convinced that Trump was corruptly motivated to overturn a lost election, those actions shed their official character and became prosecutable.

It doesn’t work that way — or, at least, it wouldn’t have worked that way if Smith had to face the judicial process.

Remember this point, which the stubborn, zealous prosecutor has refused to take onboard: The Court did not say that only core executive acts (acts at the heart of the president’s Article II duties) were immune; it said that, for purposes of its decision, it did not presently need to go further than to say that (a) such acts were absolutely immune, (b) other official executive acts were at least presumptively immune, and (c) prosecutors may not use official-act evidence to prove criminal charges. That is, if pressed further, the Court might be prepared to say that all official executive acts are not just presumptively but absolutely immune.

One cannot read the Trump opinion — as written, not as reimagined by Smith — without concluding that the justices believe hauling a president into the criminal-justice system over his exercise (even abuse) of presidential power is a very bad idea that courts should want no part of and that prosecutors should thus avoid.

Smith’s report reads as if the Trump decision either never happened or doesn’t say what it says. In fact, the report includes — as what Smith depicts as perhaps the worst abuse of presidential power — Trump’s attempt to use his control over the Justice Department to further the “stop the steal” scheme. In point of fact, Smith had to drop this scheme from the indictment because the Court ruled that presidents have absolute immunity regarding their direction of the Justice Department. So why does Smith include it here? Because this is a political exercise, not a legal one. The point is to show that Democrats have concluded Trump is corrupt; whether that conceit, however well-founded, could withstand the crucible of a criminal process in which Trump is afforded broad immunity is beside the point.

There are a number of additional points worth making, but I’ll close with these two.

First, if Smith is so convinced that he had a compelling criminal case against Trump, then why didn’t he charge the six unindicted co-conspirators? Because of Justice Department rules against identifying uncharged persons, Smith does not address the alleged coconspirators by name, but we know who most of them are — in the main, they’re the lawyers who allegedly abetted the schemes alleged against Trump. Unlike Trump, those lawyers were not, and are not, government officials (with one exception: At the time, Jeffrey Clark was a DOJ lawyer implicated in the afore-described scheme that the Supreme Court threw out). These lawyers did not have immunity from prosecution. If Smith was truly convinced that he had strong evidence of a conspiracy to defraud the government or to obstruct a congressional proceeding, he could have charged them and taken them to trial (in Washington, D.C., with Judge Chutkan presiding). Convicting the alleged coconspirators would have helped solidify the public perception that Trump had overseen a criminal enterprise — exactly the impression Smith, Biden-Harris DOJ leadership, and other Democrats sought to promote.

I suspect Smith took a pass because he knows his case is not as airtight as he portrays it to be. In criminal law — unlike in the realm of politics or even ethics — it would not be enough to demonstrate that the lawyers’ actions were legally edgy or substantively frivolous. The prosecutor would have to prove beyond a reasonable doubt that the lawyers had criminally fraudulent intent — that they knew the legal theories and factual allegations they were positing were false but posited them anyway with an intent to deceive. This would be very hard to prove — much as it would be harder than Smith lets on to prove that, deep down, Trump believed he had lost the 2020 election. (The issue in fraud is not whether what one says is factually inaccurate but whether he knows it is inaccurate and intends to deceive. It’s one thing to believe Trump was lying; it’s quite another to prove the operation of a complicated person’s mind beyond a reasonable doubt.)

The only other rational reason not to have indicted the coconspirators is that charging lawyers would have metastasized the pretrial litigation, rendering it impossible for Smith to get to trial on his schedule, which was designed to get Trump to trial in the run-up to the election. Needless to say, factoring partisan politics into charging and timing decisions is exactly what prosecutors are instructed not to do by Justice Department regulations.

Second, perhaps the most interesting part of the report, in light of the history of and ceaseless Democratic rhetoric about the Capitol riot, is Smith’s explanation that he considered but opted not to charge the crime of insurrection (§2383 of the federal penal code). While couched in fears of the unknown (i.e., the lack of prior insurrection prosecutions makes the standards hard to reckon), Smith’s report concedes that there is authority for the (commonsense) proposition that an insurrection is “an organized and armed uprising against the authority or operations of government,” which is more serious than a “rout, riot, or offense connected with mob violence” — even though the latter categories are undeniably heinous.

Smith had the advantages of a D.C. jury pool and a judge very sympathetic to his view of Trump’s misconduct. Yet, he didn’t charge insurrection — instead banking on extravagant theories of fraud, obstruction, and civil rights. That’s because there never was an insurrection case. It does not diminish the infamy of the Capitol riot to admit that this is so.

In the end, Smith, now riding off into the sunset, maintains that Trump would have been convicted at trial, while Trump, strutting into the Oval Office once again, insists that Smith’s failure to get him tried and convicted completely exonerates him. Neither version of events is convincing. The Supreme Court’s immunity ruling, properly applied, would have made it very difficult to try Trump on what were official presidential acts, let alone convict him on Smith’s extravagant theories of criminal liability. And Trump’s conduct was disgraceful. In the end, however, the judge that mattered in this saga was the American electorate — the voters both parties in the case were trying to sway.

Those voters decided to return Trump to power despite the Capitol riot and the events leading up to it — not by a “landslide” as Trump claims, but by about 1.5 percentage points, with 75 million out of 152 million Americans voting against him. Maybe that’s because a narrow majority of the public likes Trump better. Maybe it’s because Democrats disastrously mismanaged the country for four years and then tried to get the mis-managers reelected. Maybe it’s because Americans were more offended by the Democrats’ weaponizing of the justice system than by Trump’s undermining of the electoral process. Maybe it’s a combination of all those things. In any event, the saga is at an end. Now it’s time to see what lessons President Trump, his Democratic opposition, and the voters will take away from it.