Jack Smith: Hitman of the Democratic-Lawfare Complex

The modern Democratic Party operates like a mafia family. Like the mafia, Democrats have a specific organizational hierarchy. There are the big bosses who sit at the top of the entire food chain, like the Obamas and the Clintons. There are the trusted consiglieres, like Attorney General Merrick Garland and outside super lawyer Marc Elias. There are the caporegimes, like Governors Gavin Newsom and Kathy Hochul. There was even a years-long vow of omerta silence surrounding President Joe Biden’s apparent physical and mental decline.

And then, as in any organized crime syndicate, there are the street armies—the hitmen. The role of the foot soldier is to dutifully carry out the orders of his masters. Often, the tasks assigned to the foot soldier are not exactly respectable—intimidation, blackmail, extortion, and, yes, the elimination of those rivals who pose a real threat to the family’s territory or prestige.

In the year 2024, so-called special prosecutor Jack Smith—yes, only so-called, as Justice Clarence Thomas and Justice Aileen Cannon recently concluded—is the quintessential foot soldier for the Democratic Party, and the Democratic-lawfare complex that now serves as the spearhead of the party primaries.

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No one should have been under the illusion that Smith was a noble law enforcement officer dedicated to upholding a neutral constitutional state. After all, Smith accused a former president of the United States of violating the Espionage Act – the controversial World War I-era law normally reserved for such extreme cases as Julius and Ethel Rosenberg, Julian Assange and Edward Snowden. After this week, however, it will be over: Smith’s naked politics and campaigning will be on display for all to see.

But let’s take a step back. Earlier this summer, Smith was reprimanded by the court on at least three different counts.

First, in Fischer v. United States, a 6-3 majority of the Supreme Court held that a provision of the Sarbanes-Oxley Act of 2002 related to obstruction of an “official proceeding,” found at 18 U.S.C. 1512, could not be used to prosecute attendees of the January 6 jamboree at the U.S. Capitol. That Sarbanes-Oxley provision related to corporate fraud and tampering with physical documents—not to constitutional events like the formal counting of the Electoral College votes in Congress.

Second, in Trump v. United States, a slightly modified 6-3 Supreme Court opinion emphatically rejected Smith’s argument that a former president does not enjoy immunity from criminal prosecution after his presidency. Instead, the court held, the president enjoys absolute immunity from prosecution for all plenary constitutional acts performed while in office, and a rebuttable presumption of immunity from prosecution for all “official” acts taken more broadly.

Third, Judge Thomas’s competing opinion in Trump v. United States, and Judge Cannon of the U.S. District Court for the Southern District of Florida, suggested that Smith is not a legitimate special counsel of the U.S. Department of Justice because Congress has not properly established his office “by statute.” Judge Cannon’s ruling thus dismissed Smith’s Espionage Act case against former President Donald Trump, which involved a much-publicized dispute over classified documents at Mar-a-Lago. Smith is now appealing Cannon’s dismissal.

The combined effect of these rapid developments should have sent Smith an unmistakable message: Abort your mission. This is doubly true given the upcoming November election, where a certain criminal suspect will be at the top of the ballot. The DOJ’s own internal investigation Justice Manual provides that “federal prosecutors … may never make a decision regarding an investigation or prosecution, or select the timing of investigative steps or criminal charges, for the purpose of influencing an election, or for the purpose of giving an advantage or disadvantage to a candidate or political party.”

Come again?

Any reasonable prosecutor—or would-be prosecutor—would have conceded defeat and abandoned the lawfare madness. Instead, in his superseding indictment filed this week in Washington, D.C., doubled in every possible way.

Smith made only cosmetic changes to his original charging document, removing certain factual allegations that clearly pertained to a president’s plenary constitutional conduct but retaining other alleged acts that still fall within the broader scope of “official” presidential conduct. Astonishingly, in both of Trump’s charges, Smith invoked the Sarbox provision that the Supreme Court just ruled in Fischer cannot be invoked for prosecutions related to January 6 — including Smith’s anti-Trump case in Washington. And perhaps most offensive of all, dimwitted Smith simply didn’t get the memo: Like a jilted lover, he still thinks he’s a real “special counsel.” But he’s not.

As a lawyer myself: Smith is not very good at this whole legal thing. He really should consider another profession. I hear the US Secret Service is hiring.

The American people can finally show Smith – and the rest of the Democratic-Lawfare complex – the door in November.

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