Between the Lines of Jack Smith's Final Report

The Jack smith report does more than outline Trump's crimes; it lays bare the delays inherent in the system - and if we don’t address them - no AG will be able to hold future despots accountable.

There are countless reasons that the release of the Jack Smith final report on Donald Trump’s January 6th crimes is valuable - despite having been released after the election. The least of which are the details of his conspiracy to retain power through fraud, trickery, and deceit. The truth matters, regardless of when it arrives.

But deep within the report, Jack Smith exposes the myriad causes of delay that resulted in a failure to achieve accountability for one of the most heinous crimes perpetrated against the republic in modern history.

Of course the details of Trump’s criminal activity are important, but we understood those in glaring detail when Jack Smith docketed his immunity brief with Judge Chutkan in September prior to the election. What seems to be missing from the corporate media narratives is that Jack Smith spends more than a quarter of Volume I addressing the delays that plagued the investigation.

Up until the release of this report, nearly everyone believed the delays were caused by a timid, foot-dragging Attorney General who twiddled his thumbs while Rome burned.

But Jack Smith spends a lot of time exposing the true causes of the delay.

Now, listen. You can go on and dislike Merrick Garland. I’m not here to push back on that, though I’ve been breathlessly defending the facts about the investigation timeline on social media. This essay is NOT about that. This is about understanding what Jack Smith is trying to tell us about the roadblocks that gum up our institutions in favor of a unitary executive.

Given the Oval Office’s new cloak of criminal immunity, we’re likely going to have to deal with more oligarchs hungry to turn the White House into what Ketanji Brown Jackson called the new seat of criminal activity in America. It’s important that we don’t shoulder the person occupying the office of Attorney General with the blame, when the culprits for delay are part of an antiquated system that would set any Attorney General up for failure. If we shove it all on him, we miss the opportunity to address and resolve the problems that made it impossible to hold Donald Trump accountable.

And this will happen again, given the sickass draw of presidential immunity.

The Supreme Court

Before Jack Smith says that Trump would have been convicted were he not elected, he details the immunity ruling from the Supreme Court. That context is important. Ignoring it lets the Supreme Court off the hook for their inexcusable delay and ultimate monarchical designation of an all-powerful executive.

As you may already know, Jack Smith filed with the Supreme Court to quickly attend to the immunity issue in December of 2023 - with a looming court date of March, 2024. While Smith doesn’t explicitly lash out at SCOTUS for their delay, he takes a lot of effort to ensure we are aware that the high court halted everything for the first 7 months of 2024.

Aaron Blake writes for the Post: But the sum total of the report’s language is that Smith is conspicuously emphasizing the ways in which the court set aside precedent and the letter of the law and did things that plenty of others — even Trump’s allies and appointees — disagreed with.

And he’s saying all of it thwarted a case he said could have been brought in plenty of time and righteously convicted someone whose alleged crimes were of the utmost severity.

Plus, had Trump not won the election, there would be a second trip to the Supreme Court for the corrupt justices to weigh in on what Judge Chutkan would have ruled as unofficial acts. We would have been at least another year out from a trial, and that’s assuming that this Supreme Court wouldn’t have killed the case upon a second swipe.

Privilege Battles

Aside from the ultimate delay caused by the Supreme Court, Jack Smith addresses the protracted privilege battles waged by Merrick Garland beginning before Jack Smith was even appointed.

If you follow me on social media, you might have heard me remind people that there was a nearly year-long court battle waged by Merrick Garland to compel the testimony of key witnesses. Jack Smith took time to relay the details of what was known, and some of what we hadn’t heard regarding that delay.

Smith writes: "During the investigation, former VP Pence... invoked his privilege under the Speech or Debate Clause. Through litigation over the scope and applicability of the claimed privilege, the Office obtained important evidence."

Pence had argued that because he was acting in his capacity as president of the senate, that he didn’t have to testify to the grand jury because of the Speech or Debate Clause.

The Senators and Representatives shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Pence argued that he didn’t have to testify at all, but after a long court battle, the court ruled that only two bits of information were subject to the clause: Pence’s discussion with his lawyer about the disclaimer he was going to announce before the count, and his discussion with the Senate parliamentarian about that language. That battle delayed the case.

Then Jack Smith talks about Garland’s fight with a member of congress over his phone: The government also litigated Speech or Debate Clause issues against a Member of Congress. In Aug 2022 before Special Counsel was appointed...the Government obtained warrants to seize and search the cell phone of Scott Perry.

That’s not to mention how long it takes to break into a phone. In the case of Scott Perry, they were able to get him to open his phone for them, but that’s not always the case. A great example is Rudy Giuliani’s 17 devices. Those took forever to crack after they were seized. And it was Lisa Monaco who expanded the warrant to include January 6th, which previously only covered his time in Ukraine.

He continues: In August 2022, before the Special Counsel was appointed, the Government began to seek evidence from two former Executive Branch employees of Mr. Trump's, including by issuing subpoenas for testimony before the grand jury.

And then later: Mr. Trump's repeated assertion of the presidential-communications privilege as a basis to withhold evidence required extensive preindictment litigation that delayed the Office's receipt of important testimony and other evidence.

Finally, he reminds us: This record, including the period predating the Special Counsel's appointment, encompasses voluntary interviews of more than 250 individuals and grand jury testimony from more than 55 witnesses.

So in addition to a corrupt and lawless Supreme Court, we have a privilege issue coupled with a backlogged federal bench to deal with it.

The January 6 Committee

Aside from the two major holdups from the Supreme Court and the district court’s resolution of privilege, there were several other factors that delayed the prosecution. First, the handing over of the interview transcripts from the January 6th Committee. To be sure, the DoJ upset Committee members by refusing to share what they had - especially the John Eastman emails obtained by Garland, but that took the Committee multiple months of public litigation to obtain.

On the other hand, the Committee took months to hand over their materials to the DoJ. Many believed the DoJ wanted the committee materials because they didn’t want to do the work themselves and were waiting, or some even say “shamed” into beginning work by the January 6th committee. But Jack Smith addresses that in his report, too:

[The committee's] materials comprised a small part of the Office's investigative record, and any facts on which the Office relied to make a prosecution decision were developed or verified through independent interviews and other investigative steps.

That is Jack Smith informing the public that none of their prosecution decisions were based on the Committee’s work. The reason the DoJ needed the interview transcripts was to check that witness testimony was consistent. During discovery, the DoJ is required to hand over any and all material from witness testimony that’s contradictory. If a witness says one thing to the grand jury, and something not exactly the same to a congressional committee, that inconsistency can be used to impeach the witness. That’s what happened to Special Counsel Durham’s case against lawyer Michael Sussman. His star witness said different things to congress and the grand jury, and the defense used that to damage his credibility.

DoJ had to make sure that the testimony they already obtained in the grand jury matched that of the testimony given to the January 6th Committee. Yet for some reason, the Committee stalled for months handing it over, delaying the case further.

As a side note, many people argue that Cassidy Hutchinson’s explosive testimony during the committee hearings is what “woke up” DoJ, but there’s not a single lick of her testimony used in Jack Smith’s case.

Silence

Another issue not mentioned in the report but that I think is worthy of attention is the DoJ policy about not discussing open and ongoing investigations. While that may have made sense in a previous timeline, silence leaves a vacuum for disinformation.

The fact that the public wasn’t made aware of the urgency or resources being used to investigate the attack on the Capitol left an opening for all of us to draw our own conclusions.

I totally get why the Attorney General can’t talk about open and ongoing investigations for a lot of good reasons. It taints a jury pool. That it’s unconstitutional to accuse unindicted people of crimes. The importance of the presumption of innocence. But if we’re only applying those concepts to the rich and powerful, then that goes against the concept of equal justice under law. I’ve long said that we shouldn’t deprive Trump of due process, but that we should aspire to apply the same due process we afford Trump to everyone else.

Regardless, there’s an information desert. It would have been nice to hear that the leaders of the coup were being vigorously investigated with maximum resources. Regardless of where you place the blame for the delay, a lack of information leaves us all guessing.

I’m not quirt sure where the middle ground is between keeping the public informed and preserving a criminal defendant’s rights, but what we’re doing isn’t working.

Corrupt Holdovers

Another issue that needs to be addressed and overcome is the delay caused by hand-wringing between agencies. We know through public reporting that multiple people not only delayed the investigation, but blocked it at every turn. Unfortunately, you can’t charge leaders in the FBI with obstruction of justice for making investigative decisions.

It’s quite normal for there to be disagreements among agencies, particularly between the FBI and the DOJ. In this instance, there were people atop the Washington Field Office and the DC US Attorneys office after the 2020 election that were at loggerheads with the Justice Department about whether to execute search warrants, or even read Merrick Garland in on prosecutorial concepts.

Some may say “just fire them,” but our protections for civil servants in normal times don’t allow for that, and we’re going to need those protections in place in the next four years. But something’s gotta give.

When D’Antuono, the head of the FBI Washington Field office refused to execute subpoenas and search warrants in 2021, the DoJ had to circumvent them by having the post office inspector general execute the search warrants. It wasn’t until February 2022 when the FBI, black and blue from what they experienced in 2017, started playing ball with the DoJ. Even then, later that year they were hesitant to search Mar-a-Lago as Garland wanted. As a former federal employee myself, we can’t ignore the protections put in place to protect the jobs of government workers, but there has to be a better way.

Conclusion

Aside from the final statement Jack Smith makes in his report about the voters ultimately electing Trump and excusing him from accountability, there are multiple issues inherent in our system that have to be dealt with. Whether it’s a corrupt Supreme Court, an understaffed federal bench, disputes between DoJ and Congress, conflicts with the FBI, issues with stonewalling from the holdovers of a corrupt administration, silence from our agencies, or something I haven’t even mentioned until now - the corporate media failures, there are fixable problems that go beyond blaming a single person.

We must pay attention to the delays inherent in the system if we’re going to give any kind of chance to the next Attorney General.

That is why I implore you to read the report. Jack smith is trying to tell us something, and we would do well to listen.

You can read the full report here, or better yet, listen to the audio version that Andy McCabe and I are releasing for free in the Jack podcast feed.

~AG

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