September 25, 2023

Friday’s appointment of Jack Smith as special counsel to investigate and prosecute former President Donald Trump was an attempt by Attorney General Merrick Garland to prevent any such prosecution from being labeled political.

That attempt will fail because, thanks to the repeal of the awful “independent counsel” statute, any special prosecutor works for the attorney general and he, in turn, works for the president. Those facts render it inevitable that any prosecution of Trump, now a declared presidential candidate and likely opponent to Biden, is politically motivated unless proven otherwise.

To disprove political motivation will be well-nigh impossible.

There are three main aspects of Smith’s investigation of Trump. The first concerns Trump’s alleged violation of the Presidential Records Act (PRA). The second revolves around the alleged misuse — and careless storage — of classified documents. The third has to do with the accusation that Trump engaged in insurrection against the United States by his conduct on Jan. 6, 2021, before and during the riot at the Capitol.

The fight over Trump’s possession of documents has been going on for most of a year. The national archivist obtained about 15 boxes of documents before the FBI raided Trump’s Mar-a-Lago estate in August and seized 33 boxes of documents, amounting to a reported 200,000 pages of documents.

According to a New York Times report, 18 documents were marked “top secret,” 54 were marked “secret,” and 31 were marked “confidential.” Eleven thousand documents were not marked as classified.

Trump had claimed that some or all of the documents were subject to either the attorney-client privilege or executive privilege. As a result, the judge in the case of the search warrants executed by the FBI stopped the FBI’s examination of the documents until they could be reviewed by a “special master,” an independent lawyer or judge who could review the documents claimed to be privileged.

Trump later withdrew the claim of attorney-client privilege with respect to nine documents. The FBI, not wanting to wait for the special master, later claimed he’d dropped the claims of privilege.

The PRA makes the papers of every president public property and requires that they be surrendered to the General Services Administration.

There is a raft of rumors that Trump routinely destroyed documents he was working on, but no real proof has come to light. New York Times reporter Maggie Haberman’s book, with which Trump cooperated, contains several statements about the destruction of documents.

Violations of the PRA are felonies under Sections 641, 1361, and 2071 of the U.S. Criminal Code. The conduct they prohibit includes the destruction of or tampering with presidential records.

Most presidents, going back at least to Ronald Reagan, have tried to withhold records from the General Services Administration and National Archives. Trump’s case is different in that it is alleged that he destroyed documents.

The 1917 espionage statute, 18 U.S. Code Section 792 and the sections that follow, and the regulations implementing it, are aimed to prevent the misuse and improper storage of classified information. From the FBI search, it’s alleged that Trump’s staff did not store the classified material properly but left them unguarded in storage boxes.

So far, there is no allegation that Trump and his staff intentionally or otherwise allowed any foreign government to obtain access to the classified material.

It would be very hard to prosecute Trump for these alleged violations because of the precedent in the case of Hillary Clinton.

We know — and I wrote contemporaneously — about Clinton’s private “Clintonmail” system that was totally unsecured from foreign interception. Clinton and her staff, when she was secretary of state, trafficked in classified information on that system. Included in that information was top secret information such as satellite intelligence (“SITK” or Special Intelligence, Talent Keyhole) and Special Access Program information, which consists of both covert actions authorized by special presidential determination and the activity of spies, including cyberespionage. There are no secrets more closely held than satellite intelligence and SAP material.

Then-FBI Director James Comey both acknowledged Clinton’s felonious conduct and gave her a pass on it, saying no prosecutor could make the case. That was complete nonsense. In that context, any prosecution of Trump under the espionage statute would be a completely political act.

The biggest and worst political act would be to attempt to prosecute Trump’s actions on Jan. 6, 2021. As I wrote, again contemporaneously, Trump’s speech at a rally before the Capitol riot incited the crowd. He told them that Vice President Mike Pence needed to do the “right thing” and reject electors’ votes from the states he believed falsified votes.

He urged the crowd to go to the Capitol. They did, and the riot ensued. It aimed to block the counting of the electoral ballots. For several hours, it succeeded. And Trump failed to go on television to tell the crowd to stop the riot and go home.

On that basis, the Jan. 6 Committee will probably urge the special prosecutor to prosecute Trump under Section 3 of the 14th Amendment, which bars anyone who has engaged in an insurrection or rebellion against the United States from holding federal office.

Trump never told the crowd to riot. But that’s not enough for the Trump haters on the Jan. 6 Committee.

Any trial of Trump would be held in Washington, D.C., because the conduct — destroying documents and the Jan. 6 speech — took place there. A D.C. jury would convict Trump of anything from the Lindbergh kidnapping to the death of George Floyd and no D.C. federal judge will order a change of venue because of that.

This is the second time that Trump has been investigated by a special prosecutor. Robert Mueller’s investigation took two years and spent over $30 million trying to tie Trump and his 2016 campaign to Russia. Jack Smith’s investigation won’t take that long because it has a deadline, the next presidential election.

The Smith investigation will aim to interfere with Trump’s campaign with selective leaks and may tie him up in a trial next year or even in 2024. Former Attorney General Bill Barr has said that the prosecutor probably already has enough evidence to indict Trump.

Investigation and prosecution of political opponents are common in third-world despotisms but not in America. We deserve better and so does Trump.