Editors Note: This column was originally published in the Jan. 31, 2024 issue of the Chronicle Progress.
Jack Smith is a threat to American democracy.
He is blatantly seeking, as a prosecutor, to influence the outcome of the 2024 election. This is not his role and, in fact, is against Justice Department guidelines. If Smith succeeds, the consequences will be long-lasting—the special counsel will have delivered a devastating blow to the legitimacy of our electoral system, in the name of defending it.
Donald Trump and his allies were able to fashion a narrative of a rigged election in 2020 with much less material than Jack Smith is now going to give them in 2024.
He clearly is not playing it straight, and is not proceeding at anything like a normal pace. Fairly routine Jan. 6 cases have taken longer to get from indictment to trial. There is no reason that the question of criminal immunity—a big, consequential question never taken up directly by the Supreme Court—needs to be decided with lightning-quick rapidity.
Of course, Smith has to worry that Trump will get elected again and, as president, squash the case. This was a foreseeable eventuality, though, and the Justice Department could have addressed it by indicting Trump years ago. It didn’t only recently emerge, after all, that Trump gave a speech on Jan. 6 to a crowd that went on to storm the U.S. Capitol.
Once the timing of the case pushed hard up against a national election in which Trump was likely to run, forbearance would have been the proper and public-spirited course.
Trump didn’t shoot someone on Fifth Avenue. He engaged in unworthy and impeachable acts, but nothing that is straightforwardly criminal. There was no reason that this absolutely had to be prosecuted no matter what; at best, the case is discretionary.
But influencing the outcome of the election is clearly a feature, not a bug, for Smith and his minders.
There is no way President Biden, Merrick Garland, Jack Smith and Judge Tanya Chutkan would be going down this route if they thought doing so would help Donald Trump become president again. But nearly everyone assumes that a conviction would, at a minimum, hurt Trump’s chances and perhaps destroy them.
The posture of the Biden administration is, basically, it’d be really awful if Republicans supported a felon for president, and, by the way, we are going to move heaven and earth to make your likely candidate a felon.
Democrats fear losing the election but apparently haven’t thought about what it would mean to win this way, or maybe they just don’t care.
Now, if he loses, Trump won’t accept the result, even if it is a strictly by-the-books affair, and his rhetoric will be angry and irresponsible. But after a conviction and a 2024 loss, Trump would have legitimate reason to complain—to wit, he was targeted in a politicized prosecution that succeeded in its goal of taking him down in a national election.
Smith’s prosecution would be much more consequential than, say, how Twitter handled the Hunter Biden laptop story prior to the election in 2020.
Imagine if, because Chutkan has to wait on a Supreme Court ruling on obstruction, the trial doesn’t start until July or August, and a guilty verdict comes down in October? Smith will have fashioned a classic October surprise. Even on the current timetable, sentencing easily could take place in October. The most extreme scenario, of course, is that they actually jail Joe Biden’s opponent.
And how do they expect any of this to be received by the roughly 47% of the country that would support Donald Trump in a rematch with Joe Biden? Are these people supposed to believe in the neutrality of Joe Biden’s Justice Department, even though that’s absurd, or simply accept that this is how the system works now?
Exactly how this plays out this year is impossible to predict, but what’s clear is that Jack Smith has foolishly and unnecessarily set in motion a dangerous dynamic.
Rich Lowry is a syndicated columnist with King Features and editor of the National Review. He is also on X @RichLowry.
