Jack Smith, the prosecutor who would never admit what he was doing

What else could Smith say? That he had spent all that time and money, and stirred up the country so much, on a case he thought he would lose? Of course Smith would express confidence. He had no other option. Now that he has quit, he leaves muttering, “I coulda won, I coulda won.”

In retrospect, one aspect of Smith’s prosecution stands out. The single guiding fact of his prosecution — that he was working to indict, try, convict, and jail Trump before the 2024 election — was something he could never, ever admit. Justice Department guidelines unambiguously forbid such political moves: “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, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

That is exactly what Smith was doing. Many Democrats, including President Joe Biden himself, were angry that Smith and Attorney General Merrick Garland, who appointed Smith on Nov. 18, 2022, got a slow start in the Trump prosecution. Smith indicted Trump on Aug. 1, 2023, and by the end of the year, the prosecutor was racing to get the former president into a courtroom. But Smith would never say why he was in such a hurry.

In December 2023, Smith and Trump were arguing over Trump’s contention that he was immune from Smith’s prosecution. The matter was set to go to the U.S. Court of Appeals for the District of Columbia Circuit, but all of a sudden Smith made what he acknowledged was an “extraordinary request.” He asked the Supreme Court to jump into the case, take it away from the appeals court, and decide it once and for all. The idea was that the case was headed to the Supreme Court in the end anyway, so why not just eliminate the step at the appeals court and save a lot of time?

But why the rush? Smith would not say. Instead, he argued, “It is of paramount public importance that [Trump’s] claims of immunity be resolved as expeditiously as possible — and, if [Trump] is not immune, that he receive a fair and speedy trial on these charges.” If the case went through what Smith conceded was the “ordinary” appeals process, “it is unclear whether the [Supreme Court] would be able to hear and resolve the threshold immunity issues during its current term.” 

In another paragraph, Smith said that the “public interest” in the case “requires immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable.” And then Smith said it was of “imperative public importance” that Trump’s “trial proceed as promptly as possible if his claim of immunity is rejected.” Smith was in such a hurry that he simultaneously filed the case with the appeals court so they could be working on it in the event that the Supreme Court turned him down.

And that is what happened. The Supreme Court told Smith he had to go through the regular appeals process, which meant he had to wait for the case to get through the appeals court before it could be appealed to the highest court. As expected, the appeals court ruled against Trump, who of course appealed to the Supreme Court. By February, Smith was urging the Supreme Court to rush, rush, rush to decide the case as quickly as possible.

But why should the court hurry so much? Again, Smith did not mention the election. Instead, he said that the public had a “compelling interest” of “unique national importance” in putting Trump on trial ASAP. Smith wrote that there would be “serious harm to the government — and to the public — [in] postponing the resolution of the criminal charges.” 

All this time, Smith never, ever mentioned the election he was racing to beat. Obviously, if he said, “I am trying to put the Republican presidential nominee in jail before the election,” that wouldn’t have gone over too well with many people. But that is exactly what Smith was trying to do.

People noticed. In February 2024, Jack Goldsmith, a Harvard law professor who opposes Trump, wrote, “This rush violates Justice Department rules. The Supreme Court now faces the question whether it too will be a party to this rush and, if not, how it will avoid it.” Goldsmith continued, “If this were any other defendant than Donald Trump, the rush to trial — which cannot possibly give the Trump legal team adequate time to prepare its defense — would be deemed wildly unfair. Smith’s timing decisions clearly have a ‘purpose of affecting’ the presidential election, at least in the sense of wanting the American people to have the benefit of his evidence and the jury’s verdict before voting in November.”

In the end, Smith failed all around. He ran out of time. He was not able to put Trump on trial, and then, worst-case scenario for the prosecutor, the defendant was elected president of the United States. The case is over. 

But the nation learned something from the man the Justice Department chose to pursue Biden’s political opponent. They learned that the prosecutor would never, ever admit what he was doing, even if everyone could see it, plain as day. The country knew what Jack Smith, cheered on by Democrats and their allies in the media, was trying to accomplish, and a winning margin of the voters put an end to it on Election Day.