Jack Smith’s Accountability Effort Ends With More Freedom for Trump

 

Jack Smith’s Accountability Effort Ends With More Freedom for Trump

 

The Justice Department now enters a second Trump administration with less authority to pursue a president than it has had in half a century.

 

Devlin Barrett Charlie Savage Alan Feuer

By Devlin Barrett Charlie Savage and Alan Feuer

Reporting from Washington

 

Jan. 14, 2025

https://www.nytimes.com/2025/01/14/us/politics/jack-smith-trump-presidents.html

 

In a closing argument he never got to make to a jury, Jack Smith, the former special counsel who investigated Donald J. Trump, insisted that his thwarted prosecution was righteous and that his investigators set an example “for others to fight for justice.”

 

“While we were not able to bring the cases we charged to trial, I believe the fact that our team stood up for the rule of law matters,” Mr. Smith wrote in a final report issued in the middle of the night, while much of the country was asleep.

 

But the culmination of his work may have in fact had the opposite effect. Given the rulings that went against him by courts that Mr. Trump helped shape, Mr. Smith departs the most important prosecutorial job in the country over the past two years with the unintended consequence of giving Mr. Trump and every future president more, not less, freedom from legal constraints.

 

And the Justice Department, whose principles Mr. Smith fiercely defended in his last hours as special counsel, now enters a second Trump administration with less authority to pursue a president than it has had in half a century, after a sweeping Supreme Court decision that granted presidents broad immunity.

 

“I have a lot of respect and sympathy for Jack Smith,” said Peter Zeidenberg, a lawyer who served in a President George W. Bush-era special counsel investigation. “His efforts were unsuccessful, but not through any fault of his own. The roadblocks he faced were insurmountable.”

 

Critical rulings, from the Supreme Court and from Judge Aileen M. Cannon of Federal District Court in Southern Florida, tied Mr. Smith’s hands, Mr. Zeidenberg said: “Sadly, the courts and the Justice Department proved themselves to be not up to the task of finding justice when the defendant is this particular former president.”

 

The Supreme Court immunity decision “turns on its head the whole notion that no one is above the law,” said Mr. Zeidenberg, adding that he expected there would be no special counsel appointments in the second Trump term.

 

When Mr. Smith was first appointed special counsel in November 2022, shortly after Mr. Trump announced his re-election campaign, he appeared to be a near-perfect candidate.

 

His pedigree as a former public corruption and war crimes prosecutor suggested he would not flinch or flee under pressure. Even his background as an athlete seemed a good match for two marathon criminal cases that never reached the finish line. In 2023, he charged Mr. Trump with conspiring to block the results of the 2020 presidential election, and a separate indictment by Mr. Smith accused the former president of mishandling classified documents and obstructing government efforts to retrieve them.

 

The twin indictments marked the first time a former American president was charged with federal crimes. But Mr. Smith’s efforts backfired when they ran into powerful judges who not only ruled in Mr. Trump’s favor, but also used those cases to weaken the legal structures that could hold future presidents in check.

 

In Florida, Judge Cannon dismissed the classified documents case on the grounds that Attorney General Merrick B. Garland supposedly had no legal authority to appoint someone from outside the Justice Department to be a special counsel.

 

That ruling, by a judge who had showed Mr. Trump unusual favor throughout the case and was twice overruled by an appeals court at an earlier stage, cut against decades of higher-court precedent and Justice Department practices.

 

Mr. Smith appealed, but an appeals court or the Supreme Court may never weigh in. The incoming Trump administration is likely to drop the case, rendering the question moot. It would leave a cloud of doubt to linger over special counsels, prompting future attorneys general to think twice before appointing one to scrutinize a president.

 

Even more important, Mr. Smith’s indictment of Mr. Trump in the election case gave the six conservative justices on the Supreme Court an opportunity to articulate a new doctrine that presidents are presumptively immune from prosecution over their official acts — and absolutely immune for their interactions with the Justice Department.

 

That ruling, based on no explicit text in the Constitution or previous precedent, greatly aided Mr. Trump, requiring Mr. Smith to pare away parts of his case. It left unclear just how far such presidential power extends, and in that sense, Mr. Trump’s election victory and subsequent dismissal of the case may have spared Mr. Smith’s case an additional blow.

 

Nevertheless, executive branch lawyers will now be free to expansively interpret the decision — including a declaration by the majority that presidents are entitled to discuss criminal investigations and prosecutions with the Justice Department.

 

Robert Mintz, a former federal prosecutor now in private practice, said the long-term impact of Mr. Smith’s work was hard to discern. “What is clear is that the Department of Justice badly miscalculated the timing of the decision to appoint the special counsel close to the election, and misread President-elect Trump’s ability to undermine the public’s confidence in these investigations, by turning these criminal prosecutions into political opportunities,” he said.

 

For Mr. Smith, it was not the first time that his aggressive approach to prosecuting powerful politicians under the law led to rulings that weakened legal constraints on such officials.

 

In 2014, as the head of the Justice Department’s public integrity section, Mr. Smith oversaw the corruption prosecution of former Virginia Gov. Bob McDonnell, a Republican who, with his wife, had accepted over $175,000 in loans and gifts from a businessman who wanted the state’s help in promoting his dietary supplements. A jury convicted Mr. McDonnell on 11 corruption-related felony counts, and a judge sentenced him to two years in prison. But in 2016, the Supreme Court unanimously overturned his convictions.

 

In a decision written by Chief Justice John G. Roberts Jr., also the author of the majority opinion in the immunity case, the court condemned Mr. Smith’s team for adopting a “boundless interpretation of the federal bribery statute.”

 

Going forward, the court said, prosecutors in such cases must prove there was an explicit agreement linking a gift to a specific official act like a contract or vote, and other actions like setting up meetings, calling other public officials, or hosting events on behalf of gift givers did not count as official acts. The ruling has made it much harder for prosecutors to prove corruption cases against government officials, and the Supreme Court decision on presidential immunity referred to the McDonnell case, drawing a direct line between the two.

 

After last year’s election results made clear that Mr. Smith’s prosecutions would have to be shut down, given longstanding Justice Department policy that sitting presidents cannot be prosecuted, the special counsel struggled to make public his final report.

 

A flurry of 11th-hour litigation over the report led prosecutors to decide to withhold for now half of Mr. Smith’s document, the part discussing the classified documents case.

 

Mr. Smith’s appointment two years ago, announced by the attorney general, seemed to herald a remarkable test of the nation’s political and legal systems. His resignation, however, was announced via a footnote at the tail end of a court filing over the weekend.

 

Glenn Thrush contributed reporting.

 

Charlie Savage writes about national security and legal policy. More about Charlie Savage

 

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer