One must wonder if Special Counsel Jack Smith checks under his bed every night to make sure a large man wearing an oversized blue suit, long red tie, and MAGA hat isn’t there.
Smith, the public has been assured, is a nerves-of-steel prosecutor who has taken on some of the world’s most dangerous criminals during his time at the U.S. Department of Justice and The Hague. Following Smith’s appointment in November 2022, one former colleague swooned to the New York Times how Smith “has a way about him of projecting calm” and that “people look to him for steady guidance.”
But his recent conduct suggests Smith might be losing his grip. Tasked with supervising both criminal investigations into Donald Trump – the events of January 6 and possession of alleged classified material – Smith continues to make outlandish allegations about the former president in court motions. These claims include warnings that Trump is a flight risk, is jeopardizing the safety of government officials and poisoning the D.C. jury pool with his social media posts, and “could precipitate violence” if sealed search warrants were disclosed to him.
Smith’s reality-detached assessment of Trump first is evident in his June 2023 indictment against Trump for the alleged unlawful retention of national defense information. Using the most hyperbolic language possible to describe the 300 or so files with “classified markings” found in storage boxes at Mar-a-Lago – most were handed over by Trump himself—Smith claimed that the “unauthorized disclosure of these classified documents could put at risk the national security of the United States, foreign relations, the safety of the United States military, and human sources and the continued viability of sensitive intelligence collection methods.” (The seizure of those alleged documents happened more than a year after Trump had left office, plenty of time to have jeopardized national security if he wanted to.)
Smith did no better in his follow-up indictment charging Trump with four counts related to January 6. “The attack on our nation’s capital on January 6, 2021 was an unprecedented assault on the seat of American democracy,” Smith said during a brief public statement on August 1. “It was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.” Smith then went on a weird riff about how law enforcement saved the nation that day.
Flight Risks, Riots, and Mean Nicknames
What the public did not know at the time was Smith had just won a court battle against Twitter seeking all data from the former president’s dormant account. Smith not only asked a D.C. judge to authorize a search warrant for the account’s information, including direct messages and deleted posts, but sought to conceal the warrant from Trump in a nondisclosure order.
In doing so, Smith told the court that Trump might flee the country if he was informed about the Twitter warrant—a claim he later stated was made in “error.” But it wasn’t a mistake. The flight risk concern was discussed several times during a sealed hearing in February between Judge Beryl Howell and both parties, as I reported here.
At one point, Howell seemed to concur with Smith, noting that Trump “does have properties overseas that would be probative.” (There is a discrepancy as to when the flight risk claim was made but the public may never know since the final non-disclosure order remains under seal as does most of the case. Howell signed the NDO and fined Twitter $350,000 for allegedly delaying production of the records.)
After ditching the flight risk claim, Smith’s team took it up a notch. If Trump found out about the warrant, he might cause riots in the streets. “Following his defeat in the 2020 presidential election, the former President propagated false claims of fraud, pressured state and federal officials to violate their legal duties, and retaliated against those who did not comply with his demands, culminating in violence at the U.S. Capitol on January 6 (emphasis added),” Smith argued in response to Twitter’s appeal of the NDO. Trump’s knowledge of the warrant, Smith continued, “could precipitate violence as occurred following the public disclosure of the search warrant executed at Mar-a-Lago.”
Smith appeared to be referring to an armed man attempting to force his way into an FBI office in Cincinnati a few days after the FBI raided Trump’s property. He was shot and killed by police.
So, to recap Smith’s thinking: Trump is to blame for the violence that occurred on January 6 even though security and intelligence failures are well-documented and it’s not the president’s job to protect U.S. Capitol grounds and because a single crazy person tried to shoot up an FBI office in Ohio after the Mar-a-Lago raid—Trump would incite more violence after learning of a search warrant on his Twitter account?
A preposterous, desperate, and wholly dishonest argument.
But Smith really jumped the shark last week in a 19-page motion seeking a gag order on the leading GOP presidential contender. Citing numerous Truth Social posts, Smith accused Trump of attempting to poison the jury pool and intimidate potential witnesses in the January 6 case. From the motion:
Not only is Smith apparently unaware that most Americans have no confidence in the Department of Justice but the notion that Trump could in any way influence prospective jurors in a near-100 percent Democratic city by commenting on a social media platform few D.C. residents probably use is laughable.
Smith then accused Trump of posting “false and disparaging claims about the Department of Justice and prosecutors in the Special Counsel’s office in an attempt to undermine confidence in the justice system. [The] defendant called the Special Counsel’s Office a ‘team of thugs.’” Smith insisted he has been “subject to multiple threats” and one of his top prosecutors received “intimidating communications.”
Smith Seeks to Strip Trump of Key Campaign Theme
Smith asked Judge Tanya Chutkan, who has a history of making anti-Trump comments in court, to prohibit Trump from making statements “regarding the identity, testimony, or credibility of prospective witnesses,” and “statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.” (Trump filed a motion earlier this month asking Chutkan to recuse based on “disqualifying” remarks about the former president, as I reported here.)
Despite Smith’s description of the gag order as “narrow,” it is anything but. If Chutkan grants Smith’s proposal, Trump would be prevented from saying anything critical of the DOJ, FBI, federal judges, and D.C. juries. Trump couldn’t opine on government officials including Attorney General Merrick Garland and FBI Director Christopher Wray, a key talking point on the campaign stump.
Smith also wants to ban Trump from commenting on “potential witnesses,” which includes GOP rival Mike Pence. A “potential witness” could be whomever Jack Smith wants it to be in such a sweeping case.
This is a brazen act of election interference since DOJ corruption and the dual system of justice in the nation’s capital are a few of Trump’s top campaign issues.
Ironically, by seeking the gag order, Smith is responsible for amplifying these critical comments in the broader blogosphere outside of Truth Social.
Should Chutkan put a gag order on Smith?
While Chutkan weighs two speech issues—presumably defending her right to speak her partisan mind during unrelated court proceedings while agreeing at the same time that Trump should keep his mouth zipped—Smith no doubt is working on the next chapter in his Scary Donald Trump files.
Perhaps someone should volunteer to check under Smith’s bed every night.
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