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Jack Smith Owes Us an Explanation
Last week a judge unsealed a 165-page legal brief with damaging revelations about Donald Trump’s efforts to overturn the 2020 presidential election.
The revelations have been widely discussed and debated — but the timing of the release should receive more scrutiny, because the Department of Justice should not have allowed the information to be disclosed so close to Election Day. This event is the latest of many examples of Biden administration officials paying insufficient public attention to executive branch rules that are designed to ensure that prosecutions are, in appearance and reality, conducted fairly and apolitically.
The special counsel Jack Smith’s two prosecutions against Mr. Trump — for election resistance and for misappropriating and mishandling classified documents — are the first against a former president. They are also the first by an executive branch whose top officials — once Joe Biden and now Kamala Harris — have been running for president against the target of the administration’s prosecution. It is much more vital in this context than ever before for the executive branch to take scrupulous care to assure the public that the prosecutions are conducted in compliance with pertinent rules.
On this score, Mr. Smith has failed. The brief he recently filed sought to show that the election prosecution can continue despite the Supreme Court’s immunity ruling. It laid out the government’s case against Mr. Trump with what many media reports described as bombshell new details about his wrongdoing. The filing is in clear tension with the Justice Department’s 60-day rule, which the department inspector general has described as a “longstanding department practice of delaying overt investigative steps or disclosures that could impact an election” within 60 days of it. However, the rule is unwritten and, as the inspector general made clear, has an uncertain scope.
The Justice Department does not believe it is violating this or any other rule. It expressed no concern about Judge Tanya Chutkan’s proposal to set the brief deadline close to the election or to reveal the information publicly in her discretion. (She made clear that Mr. Trump’s lawyers had not shown that her court is “bound by or has jurisdiction to enforce Department of Justice policy.”) Perhaps the department thinks the new disclosures are marginal and won’t affect the election or that the rule does not apply to litigation steps in previously indicted cases, even if they would affect the election.
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But the department has not publicly justified its actions in the election prosecution, and its failure to do so in this highest-of-stakes context is a mistake.
The department could have asked the judge to set the filing date after the election without affecting the prosecution. Because it didn’t need to disclose the new details now and because it was foreseeable that the disclosures would cause approximately half the country to suspect the department’s motives, it is hard to understand any reason to go forward this close to the election other than to influence it — a motive that would clearly violate department policy. Especially given the damage to the Justice Department from its previous missteps against Mr. Trump, it is imperative that the department explain in detail why this inference is false and why its actions comported with past department practices and understandings.
The need for an explanation is heightened because this is not the first time Mr. Smith has appeared to disregard relevant department rules. In December 2023 and February 2024, he urged the Supreme Court to hear Mr. Trump’s immunity claim on an expedited basis because of the “imperative public importance” of trying Mr. Trump as soon as possible. Mr. Smith never explained the need for speed.
Many concluded, plausibly, that he wanted his trial evidence in the public realm so that the electorate could make a fully informed decision. This motivation would violate the Justice Department rule that prosecutors “may never select the timing of any action” for the purpose of “giving an advantage or disadvantage to any candidate or political party.” Mr. Smith, at a minimum, created a strong appearance of impropriety without any explanation in a context in which public confidence in the integrity of his decisions is vital.
Some will blame the Supreme Court for Mr. Smith’s predicament. The court declined to follow his requests for expedition. And its immunity decision made a pre-election trial impossible and requires a complex analysis by Judge Chutkan to decide which charges against Mr. Trump can go forward. These considerations are irrelevant to Mr. Smith’s duty to comply (and appear to comply) with the relevant rules, which, as former Attorney General Eric Holder once explained, are designed to “maintain the public trust in the department’s ability to do its job free of political influence.”
Mr. Smith’s actions are all the more significant since they take place against the backdrop of Mr. Biden’s and Ms. Harris’s violations of the post-Watergate norm that White House officials should not comment on pending Justice Department investigations, especially ones that affect their interests.
In October 2021, Mr. Biden urged the Justice Department to prosecute Mr. Trump’s aides for failure to respond to Jan. 6 committee subpoenas — a comment he later acknowledged “was not appropriate.” Mr. Biden said of the documents prosecution that Mr. Trump was “totally irresponsible” and might have compromised sources and methods and later inappropriately sought to minimize the seriousness of his own classified documents investigation compared with Mr. Trump’s. And Mr. Biden stated that Mr. Trump “certainly supported an insurrection” about four months after Mr. Smith indicted the former president in connection with Jan. 6.
Ms. Harris also crossed a line when she described Mr. Trump in the presidential debate as “someone who has been prosecuted for national security crimes” and election interference. Some may say that since she is a political candidate, this is fair game. But she both commented on Mr. Smith’s prosecution (which could influence its outcome) and used the prosecution to hurt her political opponent and help herself in the election. The vice president chose political advantage over commitment to apolitical law enforcement.
These subversions of executive branch standards may seem relatively unimportant and perhaps justified to those who believe that Mr. Trump’s violations were and will be much worse, that his crimes and unfitness for office are obvious and that his unique horribleness justifies every conceivable aggressive step to keep him from becoming president. This sort of thinking reflects a tragic eight-year pattern of breaking rules and standards or countenancing breaking them in response to Mr. Trump’s disreputable behavior.
Norms matter only when compliance hurts — when they prevent a government actor from taking an action that serves his or her interests or conception of justice. It was crucial after Mr. Trump’s unprecedented disregard of rules and standards during his presidency that the successor administration convince the public that it was complying with them in order to re-establish their importance and efficacy. The Biden administration pledged to do this, for just this reason.
But in the critical historical test of the first prosecution of a former president and a political opponent, Mr. Biden, Ms. Harris and Mr. Smith have failed. There are many contributors to the sharp decline in trust of our justice institutions, but this one is near the top of the list.
