WASHINGTON—Justice Department Special Counsel Jack Smith, named to investigate then-President Donald Trump’s attempts to unconstitutionally remain in the Oval Office even after he lost the 2020 presidential election to Joe Biden, says he could have successfully prosecuted Trump for his orders for the Trumpite invasion, insurrection and coup d’etat try at the U.S. Capitol.
And Smith adds he could have prosecuted Trump for his other multiple tries at remaining president, even while privately hearing, knowing and saying he lost the balloting.
Further, prosecution could have occurred despite the U.S. Supreme Court’s ruling limiting evidence in the case by granting Trump almost complete immunity from criminal prosecution as a former and present president, forever, Smith adds.
But his office didn’t prosecute, Smith’s final detailed 174-page report on the Trump case says, because the Justice Department decided not to do so. Left unsaid: Trump will become president again on January 20. Then his DOJ toadies would drop the case.
The declaration about non-prosecution is buried in the report, which Smith issued January 13, four years and a week after the failed invasion of more than 1,000 Trumpites.
Some waved Confederate flags and others repeatedly yelled “Trump! Trump! Trump!” and “Hang Mike Pence!” Trump’s VP, while rampaging through the Capitol, injuring and killing police, and sending lawmakers, staffers and reporters running for their lives.
Meanwhile, Trump looked on from the White House and did nothing.
Smith’s report declares prosecution could legitimately go forward, and there was enough evidence to convict Trump, even despite the High Court’s immunity ruling. He said the Justice Department—without naming names—decided to drop the case.
What Smith did not discuss, of course, was why, despite all his evidence, millions voted to send Trump back to the White House next week. Part of the answer to that lies in the fact that it is difficult to discuss democracy and violation of democratic norms with people finding even the most basic challenges of daily life difficult if not impossible to navigate. A woman with an infected and swollen foot unable to go to a doctor and pay the rent due in three days while feeding her child is not particularly receptive to discussions about “democracy.” And is real economic democracy existed in the country she would not be in such a terrible situation whereby living wages, health care and food are denied to too many.
Prosecution of Trump, however, screeched to a halt when the U.S. Supreme Court, 6-3, gave Trump and all future presidents wide immunity from criminal prosecution forever for almost any actions undertaken while in office. The three Trump-named justices provided the key votes for that ruling.
“The Supreme Court’s decision on presidential immunity, handed down after the initial decision to prosecute and analyzed below… did not alter the Office” of Special Counsel’s “view that the Principles of Federal Prosecution compelled prosecuting Mr. Trump,” Smith’s report rebuts the court.
“Although that decision prevented use of certain evidence uncovered regarding Mr. Trump’s misuse of presidential power, he also engaged in non-immune criminal conduct set forth in the superseding indictment” the grand jury issued after the High Court ruled for Trump.
So Smith’s report “discusses only evidence that was not immunized–either because it involved Mr. Trump’s private conduct or because the office would have rebutted any presumption of immunity.”
Smith explained there were “multiple federal interests” to indict and prosecute Trump. They included interest in “the integrity of the United States’ process for collecting, counting, and certifying presidential elections, and in a peaceful and orderly transition of presidential power.”
Others are “the federal interest in ensuring every citizen’s vote is counted, the federal interest in protecting public officials and government workers from violence, and the federal interest in the fair and even-handed enforcement of the law.
“All of these federal interests, which are rooted in the law, the Constitution, and our basic democratic values, are substantial and command protection from Mr. Trump’s criminal design to subvert them.”
A wealth of details
The report contains a wealth of details about Trump’s schemes to keep in power illegally. They culminated in the U.S. Capitol chaos that led to his impeachment by the House. The Senate failed to muster the needed two-thirds majority vote to convict Trump.
Smith emphasized the report is not only for the record, but because other prosecutions of Trump are, as he put it, unlikely to succeed. Indeed, while Smith and his staff sifted evidence and crafted their report, subsequent events prove he was right:
- State Supreme Court Justice Juan Merchan in Manhattan has indefinitely postponed sentencing Trump on 34 felony illegal political payment claims. He says the Supreme Court’s presidential immunity ruling produced the delay.
- Trump-named federal Judge Aileen Cannon in West Palm Beach, Fla., has thrown out Smith’s other case against Trump for illegally taking top-secret papers, including a Pentagon plan to invade Iran, to his Mar-a-Lago mansion where anyone—including an Australian business magnate who later blabbed about it—could see and read them.
- And Trump’s lawyers successfully tied up in knots prosecution of their client in Fulton County, Ga. (Atlanta) Court for racketeering and conspiracy to steal Georgia’s electoral votes. They put the prosecutor, DA Fani Willis, on trial, stalling the trial of Trump and co-defendants. That Trump delay-delay-delay plan succeeded. The actual trial has yet to start and Willis was removed from the case a month ago.
- As for the coup try, Smith’s report justifies indicting Trump on the grounds of obstructing justice, obstruction of an official federal proceeding—the electoral vote count—and especially the denial of the American people’s right to have all their votes counted freely and fairly.
“Few federal interests are stronger in our representative democracy than that of protecting every eligible citizen’s right to vote and to have that vote counted,” Smith declares. “The evidence establishes that in contravention of that right, Mr. Trump urged state officials to disregard the legitimate majority of votes for Mr. [Joe] Biden,” his Democratic foe, “and instead appoint Mr. Trump’s electors.”
That disregard included when Trump “pressured and threatened Georgia’s Secretary of State to ‘find’ more than 11,000 votes to dilute the legitimate vote count and allow Mr. Trump to be declared the winner of the state, and urged Mr. Pence,” his own vice president, “to discard the legitimate electoral certificates that reflected millions of citizens’ votes in the targeted states.”
- Pence refused to throw out legitimate electoral votes from swing states Biden won, despite multiple demands from Trump that he do so. Brad Raffensperger, Georgia’s Republican Secretary of State, flatly told Trump in a testy phone call that he would not “find” the 11,780 popular votes Trump needed to win the state’s 16 electoral votes—by one popular ballot.
“An additional factor meriting Mr. Trump’s prosecution therefore was the need to vindicate and protect the voting rights of these and all future voters,” Smith’s report said.
Smith also defended his office against complaints, often from the left, that he was slow-walking prosecuting Trump and thus moving trials ever closer to permanent delays due to last year’s looming presidential election.
“From the outset…the Office” of Special Counsel “recognized the weighty issues” it confronted “and operated on the principle that the best interests of the department and the nation required prompt investigation and decision-making,” Smith retorted.
Its “exceptional working pace ensured its investigative work could be completed, charging decisions could be made, and any necessary indictments could be returned by the summer of 2023, long before the election,” Smith stated.
No interest in affecting election
“The office had no interest in affecting the presidential election, and it complied fully with the letter and spirit of the department’s policy regarding election-year sensitivities,” Smith’s report says. That’s unlike what former FBI Director James Comey did to Democratic nominee Hillary Clinton when reopening her e-mails case less than two weeks before the 2016 election against Trump.
Smith’s statement, by implication, also puts the blame for delaying trials through last year’s election where it belongs: On Trump and his lawyers. They succeeded.
Smith’s report includes widely known details of Trump’s multiple tries to remain in power, brought to light by court papers, arrests of invaders and their statements that Trump ordered them to the Capitol, sentencing of co-conspirators and the House’s special committee investigating the invasion. It also contains other previously unknown nuggets:
- Some 1500 insurrectionists have been arrested. At post-coup criminal trials, many or their lawyers—including the lawyer for Proud Boys leader Enrique Torrio–either blamed Trump or claimed they were following his orders. Though Smith did not say so, “good Germans” claimed to follow Hitler’s extermination orders during World War II.
“[I]t was [Mr. Trump’s] anger that caused what occurred on January 6th” and “[i]t was not Enrique Torrio,” his lawyer said.
“Following his arrest on charges stemming from the Capitol siege, rioter Alex Harkrider sought release from pretrial detention by arguing that ‘[l]ike thousands of others [at the Capitol], Mr. Harkrider was responding to the entreaties of the then Commander-in-Chief, former President Donald Trump,’” Smith reported.
- Trump lied repeatedly to his staff, aides, the invaders and others, that the election was stolen, even while admitting privately that it wasn’t and that he had lost. The most obvious instance came when discussing a thorny military problem overseas, he told generals he would “leave it for the next guy,” Democratic president-elect Joe Biden, who defeated him.
- Trump not only threatened people who resisted him, using language reminiscent of New York mobsters he dealt with as a construction magnate there, but also spewed the same curses at allies or innocent people who doubted or rejected his lying claims of a “stolen election,” or who were just doing their jobs: Counting votes.
“Another federal interest that merited Mr. Trump’s prosecution was addressing his resort, throughout the charged criminal conspiracies, to threats and encouragement of violence against his perceived opponents,” Smith reported.
“Consistently, when elected officials refused to take improper actions Mr. Trump urged, like discarding legitimate votes or appointing fraudulent electors, Mr. Trump attacked them publicly on Twitter, a social media application” with “more than 80 million followers.
“Inevitably, threats and intimidation to these officials followed.
“For instance, after Mr. Trump targeted a Philadelphia City Commissioner in a tweet criticizing the commissioner for stating there was no evidence of widespread election fraud in Philadelphia, threats against the commissioner grew more targeted, more detailed, and more graphic.
Thuggery extended widely
“These threats extended to include highly personal information like the names and ages of the commissioner’s family members, as well as photos or the address of his home. Fulton County, Ga., election officials similarly reported receiving threats–including death threats–following Mr. Trump’s false public accusations against Fulton County election workers.
- “Mr. Trump also targeted private citizens who served as election workers. He took particular aim at a mother and daughter who worked at Atlanta’s State Farm Arena counting ballots on election day; he and his co-conspirators spread pernicious false claims these election workers committed misconduct. Although the lies were promptly and publicly debunked, Trump continued to repeat them, and the election workers were subjected to vile threats.
“As one of the women explained, ‘When someone as powerful as the President of the United States eggs on a mob, that mob will come. They came for us with their cruelty, their threats, their racism, and their hats. They haven’t stopped even today.’”
The two workers, Shaye Moss and Ruby Freeman, both African-American women, became targets of a stolen election conspiracy theory publicized by Trump’s top megaphone, former New York Mayor Rudy Giuliani, who’s “Co-conspirator #1” in Smith’s report. The two have sued Giuliani for $148 million, and won. Now they’re trying to collect.
- The threats and intimidation from Trump and his supporters included nasty, racist language, especially on his own media platform, Truth Social.
“The day after his arraignment, for example, Mr. Trump posted on the social media application Truth Social, ‘IF YOU GO AFTER ME, I’M COMING AFTER YOU!’ The next day, ‘one of his supporters called’ U.S. District Court Judge’ Tanya Chutkan’s chambers and said: ‘Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.'”
Chutkan, an African-American woman, was assigned to handle Smith’s planned Trump trial in D.C.
“Mr. Trump also ‘took aim at potential witnesses named in the indictment, and lashed out at government officials closely involved in the criminal proceeding,’ as well as members of their families,” Smith’s report adds.
- Though the House Select Committee to investigate the January 6th insurrection turned over all its evidence—and a recommendation for prosecution—to Smith, he used little of it.
“The office’s investigation included consideration of the report on Dec. 22, 2022,” by the committee “as well as certain materials received from the committee,” Smith said in a footnote. “Those materials comprised a small part of the office’s investigative record, and any facts on which the office relied to make a prosecution decision were developed or verified through independent interviews and other investigative steps.”
Trump, of course, alleged there was a conspiracy between the Select Committee and the Special Counsel. Without using the word “lie,” Smith said that’s wrong.
“During the prosecution of the election case, Mr. Trump alleged the Select Committee and Special Counsel’s Office were one and the same and sought additional discovery about the Select Committee’s work. The district court rejected the claim. Mr. Trump has ‘not supplied an adequate basis to consider toe January 6 Select Committee part of the prosecution team,’” that court said.
“Regardless, the office provided or otherwise made available to Mr. Trump in discovery all materials from the select committee.”
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