- The Washington Times
Wednesday, November 23, 2022


Liberal Washington celebrated the Nov. 18 appointment of Department of Justice functionary Jack Smith as former President Donald Trump’s second special counsel.

Attorney General Merrick Garland, who has made investigating President Biden’s chief political rival a top priority, chose Mr. Smith as a prosecutor who has gone after both Republicans and Democrats.

But Mr. Smith fumbled his biggest case, which does not bode well for Mr. Trump as he faces another criminal investigation, this one over classified documents he took from the White House and stored at his Mar-a-Lago home office.

Here’s the history. Mr. Smith served as Justice’s Public Integrity Section chief from 2010 to 2015 via an appointment by President Barack Obama’s attorney general, Eric Holder. Mr. Holder proudly announced he was Mr. Obama’s “wingman” — a tactical war term that means you are the ultimate protector.

Recently a war crimes prosecutor at The Hague, Mr. Smith is returning to the most politicized Department of Justice in memory. Mr. Garland is willing to target parents who speak out against teacher woke-indoctrination and Catholics who protest the abortion industry while letting leftists break federal law by stalking Supreme Court justices. Justice is a purely political hub run by committed Democratic Party members.

During his term at DOJ, Mr. Smith botched one of the Obama administration’s biggest political cases: the drive to convict Virginia Gov. Bob McDonnell, who at the time was mentioned as a possible Republican presidential candidate.

Mr. Smith’s public integrity team, which oversaw the prosecution along with Virginia federal prosecutors, argued that it was a crime for Mr. McDonnell to set up meetings for a businessman who gave him gifts.

At first, the strategy worked.

Mr. Smith won a conviction in 2014 for both Mr. McDonnell and his wife for accepting $175,000 in gifts and loans from Jonnie Williams. Mr. Smith argued that helping Mr. Williams navigate the state bureaucracy was an “official act” that made the largesse bribery.  

Mr. Smith found easy sailing before a jury and judges until a skeptical Supreme Court took the case, heard Mr. McDonnell’s appeal and then unanimously obliterated the conviction, 8-0.

Chief Justice John Roberts wrote the opinion, signaling the court’s unhappiness with Obama/Holder/Smith justice.

Put simply, Mr. Roberts said, arranging a meeting for Mr. Williams with state officials was not an “official act,” needed to prove bribery. The governor did not endorse Mr. Williams’ request to have a university study his product; he just opened a few doors to let him try to sell the idea.

“The court rejects the government’s reading,” Mr. Roberts said. “The question remains whether merely setting up a meeting, hosting an event, or calling another official qualifies as a decision or action on any of those three questions or matters. It is apparent … that the answer is no.”

The court said Mr. Smith’s unit went too far in trying to imprison a governor.

“The Government’s expansive interpretation of ‘official act’ would raise significant constitutional concerns,” the Roberts opinion said. “Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. Representative government assumes that public officials will hear from their constituents and act appropriately on their concerns. The Government’s position could cast a pall of potential prosecution over these relationships.”

The McDonnell debacle does not bode well for Mr. Trump

Here’s why.

It is a top priority of Mr. Biden to vanquish Mr. Trump as a rival. Mr. Biden‘s White House is akin to the Third World, where opponents of a regime are regularly jailed.

How do I know of Mr. Biden’s deviousness? He said so, the day after the Nov. 8 elections.

“Well, we just have to demonstrate that he [Mr. Trump] will not take power by — if we — if he does run,” Mr. Biden pronounced. “I’m making sure he, under legitimate efforts of our Constitution, does not become the next president again.”

Understand this: The president of the United States is pledging all his constitutional powers in “making sure” Mr. Trump is never elected again. Those powers rest with Mr. Garland and the FBI, which took the unprecedented smash-and-grab by raiding his Florida home and going through Melania’s dresses.

Mr. Trump announced he’s seeking the presidency again. Shortly thereafter, Mr. Smith went to Washington knowing both Mr. Biden and Mr. Garland want Mr. Trump put away.

To me, this means he will discard the chief Trump argument: That as commander in chief, and based on a Supreme Court decision, he had the power to declassify documents and take possession of presidential papers as defined by law.

If Mr. Garland and the swamp folks at the National Archives who pushed the paper chase accepted this reasoning, the attorney general would not have sent the Biden political police force to Mar-a-Lago.

I fully expect Mr. Smith to line up with his Democratic bosses.

• Rowan Scarborough is a columnist with The Washington Times.

Copyright © 2022 The Washington Times, LLC.