OPINION:
July was a bad month for Jack Smith. He was stripped of his special counsel title by a federal judge in Florida, and he lost 6-3 in the Supreme Court on the critical issue of presidential immunity. Despite the setbacks, he just took another shot at former President Donald Trump in the hopes of bringing him down before the November election.
Many likely assumed the case was dead, considering the legal drubbing Mr. Smith just received. But this determined prosecutor moved back to the United States from The Hague for the once-in-a-lifetime opportunity of sending a Republican candidate to jail. He’s not going back now.
The Department of Justice cautions prosecutors against filing cases involving political candidates in the 60 days before an election. Ballots start hitting mailboxes in several states next week, and in-person voting begins on Sept. 20 in Virginia. The 2024 election is already underway.
According to DOJ’s Justice Manual, “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”
Mr. Smith’s actions seem carefully timed. As soon as Mr. Smith had the opportunity, he ran to a grand jury of Democrats in the District to obtain this new indictment against Mr. Trump, which he presented on Tuesday to Judge Tanya Chutkan.
Considering Judge Chutkan’s lack of sympathy for Mr. Trump (she was appointed by then-President Barack Obama), the court will likely overlook the rushed indictment’s deficiencies and assist Mr. Smith in reaching his Nov. 5 target.
The biggest remaining obstacle is the Supreme Court’s clear instruction that the judiciary must not attempt to second-guess presidential decisions. As Justice Clarence Thomas explained, “Few things would threaten our constitutional order more than criminally prosecuting a former President for his official acts.” But that’s exactly what this case is about.
Rather than take the Supreme Court’s recent rulings seriously, Mr. Smith deleted problematic sections and turned in the rest of the indictment essentially unchanged. It’s as if he had help from the same Democratic National Committee intern who forgot to replace the phrase “Biden’s second term” in the official party platform.
Tellingly, Mr. Smith retained the “obstructing an official proceeding” charge against Mr. Trump — the exact charge that the Supreme Court rejected in June in Fischer v. United States. The high court concluded that Jan. 6 rioters couldn’t be charged under this provision of the Dodd-Frank financial reform law because it was designed to address Enron’s shredding of truckloads of documents 22 years ago.
The justices explained the obstruction charge must involve destruction of “records, documents, or objects.” Examples of this might be Hillary Clinton smashing her mobile phones with a hammer, or Justice Department prosecutors wiping information from their phones to circumvent congressional investigators.
Mr. Trump did none of that. His purported crime is disagreeing with the narrative promoted by the Democrats and their media allies that the 2020 election was the most secure in American history. As Mr. Smith puts it, the former president “made knowingly false claims that there had been outcome-determinative fraud in the 2020 presidential election.”
It sure looks like criminalizing speech, which is now in vogue in Democratic circles. Fortunately, voters fed up with these antics can do something about it in the days and weeks ahead. They ought to use their vote to put a stop to the judicial abuse and send Mr. Smith back to the Netherlands.
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