Dem
47
GOP
53
We thought that once we had fully accepted that the Trump administration is mostly motivated by revenge, ego, grift or some combination of the above, it would be a little easier to make sense of everything. But it really isn't, because even if the prime motivation is the President's self-interest, it's foolish to achieve some small amount of good for that self-interest, but at the same time to do vastly more harm (and harm that is entirely foreseeable). We are so confused by the vendetta against Jerome Powell that we wrote two different pieces about it, "Unforced Errors, Part I: Jerome Powell" and Unforced Errors, Part IB: Jerome Powell (again). To that, we added Unforced Errors, Part II: Mark Kelly. And now, we turn to former special counsel Jack Smith.
Recall that in November, Smith was subpoenaed to testify before the House Judiciary Committee, by Rep. Jim I-saw-nothing Jordan (R-OH). Smith did not challenge the subpoena in court or otherwise try to get out of it. Instead, he not only agreed to testify but to do so publicly. Jordan declined that "opportunity," and held the deposition behind closed doors on December 17. At the time, we took the view that this would not go well for the Republicans and that they would not achieve whatever ill-conceived goals they had cooked up. And if they were hoping to selectively release some "gotcha" moments or clips where Smith tripped up or got angry or defensive, they were going to be sadly disappointed. We predicted that "in a formal hearing that he is required to attend and that is already set up as a Republican political stunt, the brakes can come off and he can defend himself and his staff, correct all the various misstatements and falsehoods, and go on the offense to try Trump in absentia in a court of public opinion." And, indeed, that is what happened.
A couple cardinal rules for trial testimony are: (1) You never ask questions that you don't already know the answer to and (2) you call witnesses whose testimony is familiar and whose demeanor and credibility you have assessed. With Smith, it was immediately apparent that Republicans had no idea what he was going to say or how he was going to say it. Now, granted, this was ostensibly a deposition, where you ask lots of open-ended questions, but in reality this was the trial, and the only person who seemed to get that was Smith. Remember, the public has rarely heard him speak other than when he first announced indictments against Trump. And the public's fascination with him is commensurate with his reticence. Smith is a very private person whose politics are unknown, who has no presence on social media and who seemingly has no personal axe to grind, even against people who are now targeting him personally.
From the jump, it was clear that Smith is someone who is devoted to the law, and the institutions and people who enforce it. He was professional, straightforward and honest. He answered every question in the same calm, respectful, matter-of-fact demeanor, no matter how loaded the question was, or how they tried to bait him, or how often he was asked the same question in a slightly different way. He was the epitome of a career prosecutor for whom politics plays absolutely no role in how he does his job. The camera was focused on Smith the entire time, but you could practically feel how he completely confounded the Republicans on the committee, for whom politics is their only driver, and who cannot even fathom that someone might be motivated by something other than political considerations. After a while, one got the sense that they were just embarrassed that they hauled this unimpeachable man in front of them.
Allison Gill, of Mueller, She Wrote put together a very helpful compilation (with her commentary) of the highlights from the deposition. We agree with her curation and will just make a few observations:
The Majority's lawyer (whose name is redacted in the transcript) insisted on quoting former Attorney General Robert Jackson, whose principles inform Smith's work:
With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.
Remind you of anyone? Here's a hint: The last name of the person we are thinking of does not rhyme with "Pith" but it DOES rhyme with "Pondi."
Smith was given the chance to explain how he was going to provide proof beyond a reasonable doubt of Trump's guilt. He testified about all of Trump's allies in the Republican Party who put country over party, even at great personal risk. They told Trump he lost, and that what he was doing was illegal and dangerous and Trump ignored them. He said that Trump's admissions that he lost, such as "I can't believe I lost to this effing guy," were less important than all the corroborating evidence from his friends and people who supported his candidacy. Incidentally, Smith had such command of the facts that he used an example from an interview with Mark Meadows, where Meadows said he had spoken to Jordan on 1/6 and "had never heard him so scared." That was a nice touch.
Smith was asked repeatedly about the phone records, of certain Representatives, that were subpoenaed following 1/6, and how he chose which individuals to target. Smith responded that he didn't choose them, Trump did. Trump chose whom to call and he chose to speak only to his Republican allies to see if he could get them to delay the certification of the election while the Capitol attack was ongoing and mobs were inside hunting the representatives down. He said that if Trump had called Democrats, he would have subpoenaed their records. When asked who should be held accountable for the records being sought, Smith said, "Trump."
When asked if he ever considered not bringing an indictment, Smith responded, "Absolutely." In fact, he said, there were constant conversations about whether to move forward and whether they were compiling enough evidence. Only when they were sure that they had evidence to prove the case beyond a reasonable doubt did they pursue indictments. When asked (obviously by one of the Democrats on the Committee) if he ever had to present a case to a grand jury three times before securing an indictment, he responded, "Never."
Smith also spent time defending his team, and talked about the injustice that the people who represented him are now being targeted, with their security clearances being revoked, and that the members of his team, who were only doing their jobs, have lost those jobs. He assumed this was to discourage anyone from defending him. At this point, Smith's lawyer said loudly, "We're still here."
The only time Smith got emotional was when he discussed the attacks on law enforcement and how career FBI agents have lost their jobs, including one man who was fired 2 weeks after his wife died. Smith said he had been at the funeral and could not believe the callousness of this administration to these heroes. He said these are career FBI agents, prosecutors and support staff. They are not self-promoters and don't defend themselves in front of cameras and that this treatment drives good people away from public service.
Smith was also asked whether pardoning January 6 defendants makes the country less safe. He responded that these were people who violently attacked over 140 law enforcement officers, whom judges referred to as the worst of the worst, and who have gone on to commit other crimes since being pardoned. According to Smith, unleashing these criminals into our communities makes us less safe and sends the wrong message.
When asked about Trump's retribution campaign against him, Smith said only, "I will not be intimidated."
One last note is that Smith was given his files to review, including access to Volume 2 of his report, but he chose not to read it given the injunction that's currently in place from Judge Aileen Cannon. The DoJ told Smith and his team that Smith could not discuss anything about the classified documents case that was not properly released to the public, so that severely hampered the questions that Republicans could ask him, including any questions about the execution of the search warrant at Mar-a-Lago. But Smith said that he would happily come back in a public setting to testify if that injunction were lifted. And Jordan invited Smith to testify publicly next Thursday, but that is about a month shy of the February 24 expiration date of Judge Cannon's injunction. Presumably, this was not an accident and the timing of the hearing is in service of some plan for Republicans to ask questions they know Smith cannot answer and then use his failure to answer as a basis for legal action. They were unsuccessful in the closed door hearing with this ploy; it's unlikely they'll fare any better with the public watching.
As with Powell and Kelly, we struggle to wrap our minds around the risk-reward analysis being done by Jordan and the other MAGA folks on his committee. Jordan went to the 175th-ranked law school in the country and couldn't even pass the bar exam; there is no WAY he is going to outmaneuver or outthink a veteran prosecutor who also happens to have graduated from Harvard Law (which, as we understand it, is ranked somewhere higher than 175th). Meanwhile, this show hearing keeps Jack Smith's name and investigation in the headlines, and also increases the odds that Smith will share quite a few more truths, as soon as he's legally able to do so. We guess that if you're looking for ways to please the Dear Leader, you have to take what you can get. Maybe they can subpoena the guy who goaded Trump into making an obscene gesture, and subject him to the third degree. (L & Z)