Jack Smith did not deserve the Senate trashing

I am critical of Jack Smith, the former special counsel, who failed to convict President Trump for trying to overturn the results of the 2020 presidential election and for mishandling classified documents at his Mar-a-Lago estate after he left office.

In failing to bring Trump to book, Smith failed in his prosecutor’s obligation to see that justice is done. But Smith is neither perjurer nor “ villain ” nor “ dirtbag ,” as Sen. Eric Schmitt (R-Mo.) savaged him last week before the Senate Judiciary Committee.

Smith delayed indicting Trump over the events of Jan. 6, not getting around to it until August 2023 , over a year after he was appointed. He also brought the documents case in Florida instead of Washington and consequently drew an inexperienced judge in the tank for Trump. As a consequence, neither case went anywhere.

Smith was appointed in November 2022 , three days after Trump announced he was running for the 2024 Republican presidential nomination. Attorney General Merrick Garland, who could have indicted Trump in 2021, said in a statement that since both Trump and Biden were likely to be presidential candidates, Smith’s appointment was meant to underscore the Department’s commitment to “make decisions indisputably guided only by the facts and the law.”

Trump, following the Roy Cohn playbook of lashing out at his accusers, immediately called Smith “ a political hit man .”

In our antiquated constitutional architecture, it is virtually impossible to investigate a high-ranking political figure of the party out of power without the appearance of partisanship. The only guardrails are our grand juries and independent judiciary.

On July 1, 2024, the Supreme Court after delaying matters for more than three months, largely agreed with Trump on the Jan. 6 case . They stripped the case of any conduct that could fall under “official duties.” Another grand jury returned an indictment for the same offenses. But after Trump was reelected, Smith had to dismiss both cases because of the longstanding position of the Department of Justice that sitting presidents cannot be prosecuted.

The cases may be resumed once Trump is no longer president, unless he complicates matters by pardoning himself on the way out, which he is likely to do.

Smith’s questioning before the Senate was a monument to unfairness. He was under oath, and his Republican tormentors were protected by constitutional privilege . They could smear him with any lie they might devise. Last week, focusing on Trump’s Jan. 6 indictment , the MAGA senators were unbridled in their efforts to heap Smith with abuse.

Schmitt, touted as a potential 2028 vice presidential candidate if JD Vance gets the nod for the top spot, was the deputized hit man to shoot down Smith as a lying out-of-control partisan who was part of a conspiracy with Fulton County, Georgia District Attorney Fani Willis and her lover/colleague Nathan Wade to get Trump.

But it turns out that Schmitt was shooting airballs.

Schmitt asked Smith: “Did you go to an NBA game between the Golden State Warriors and the Atlanta Hawks on Feb. 3, 2024?”

Smith answered : “I really don’t think so. It’s possible I flew through the Atlanta airport on the way to Florida, but I do not have a recollection of going to Atlanta. I definitely did not go to a Hawks game. I’m sure of that.”

“Did you ever meet Nathan Wade or Fani Willis in your time as special counsel,” Schmitt asked . “No,” said Smith.

Then Schmitt sprang what proved to be a non-trap: “What would you say if I had a series of text messages from your team that said you were in Atlanta at a Warrior-Hawks game on February 3, 2024, the day after Willis and Wade announced their affair?” A staffer and Sen. John Kennedy (R-La.) briefly flashed a poster board.

Smith said : “You just took it down really quick. If I could look at that again?” Schmitt declined and accused Smith of perjury. No judge would allow any lawyer to engage in such chicanery.

Smith said : “I recall going to a University of Maryland basketball game where Caitlin Clark was playing right around that time…. You could check if that was the exact date. It was Maryland playing Iowa, I think, February of 2024.”

Sen. Amy Klobuchar (D-Minn.) rode to the rescue. In truth and in fact, Smith was in Maryland, where the University of Maryland’s Terrapins played the University of Iowa Hawkeyes.

Klobuchar utterly destroyed Schmitt: “You had teams wrong, sir.”

Schmitt exploded, accusing Klobuchar of “trying to rehabilitate the witness.” But rehabilitating a witness is a perfectly legitimate technique lawyers use to protect the record. Tapes of the games found Smith in the stands at the Maryland game .

Smith stood firm : “Our investigation proved beyond a reasonable doubt that President Trump engaged in serious crimes against our nation. If asked whether to prosecute a former president today, based on the same facts, I would do so regardless of whether that president was a Republican or a Democrat.”

If one were to fault Smith, it would be for failing to close the deal.

James D. Zirin is a former federal prosecutor in the Southern District of New York and a published legal analyst.