George Washington University law professor Jonathan Turley said Monday that history will not remember Special Counsel Jack Smith too kindly after he dropped the election submersion case against President-elect Donald Trump.
Smith filed a motion Monday to dismiss his four-count criminal indictment against Trump which alleged that the president-elect engaged in conspiracy in an attempt to overthrow the 2020 election results on Jan. 6, 2021. Turley said that Smith “lost credibility” by attempting to both try Trump and release “damaging information” before the 2024 election.
“Smith had sort of a gratuitous end to his term. You know, he pushed not only for a trial before the election, and he pushed for months for that, but he also released damaging information before the election something that many people saw as an effort to influence the election,” Turley said. “Smith knew that if Trump won, he was out of a job and this release of the information was entirely unnecessary, [Judge Tanya Chutkan] admitted that it was procedurally irregular, but she went along with it and I think that that did tarnish his position and certainly in history because he didn’t have to do that. He had become so absolutely fixated on trying Trump before the election, that he lost credibility I think with the courts.”
Turley referred to Smith’s 165-page un-redacted brief released Oct. 2 detailing how Trump allegedly attempted to overturn the 2020 election, which had been released in an attempt to prove that the now-president-elect’s actions on Jan.6, 2021 were not official presidential acts. The Supreme Court ruled in July that former presidents are immune from prosecution for official acts taken while they are in office, causing Smith to file a trimmed down superseding indictment in late August.
Turley further argued that Smith hardly made any significant changes to his superseding indictment against Trump, causing “constitutional problems.”
“I think it’s also very important to remember that Smith’s case was riddled with constitutional problems,” Turley continued. “When the Supreme Court reached its immunity decision, it was clear he would have to pare down the indictment. He really didn’t do it to the degree that he needed to do. He took a very minimalist approach, he removed a few references, a few witnesses that stemmed from the first Trump presidency. But he largely just repackaged it and some of us said that we thought that it was not enough.”
Smith, who indicted Trump in August 2023, wrote in his filing that his decision aligns with the Department of Justice’s longstanding position to not federally indict a sitting president. He charged Trump in a separate case in June 2023 on over 30 counts relating to his alleged unlawful storage of classified documents at Mar-a-Lago.
“It has long been the position of the Department of Justice (DOJ) that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President,” Smith wrote. “But the Department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President.”
After Trump won the election, the special counsel asked Judge Tanya Chutkan to pause all deadlines regarding the election interference case to allow prosecutors to evaluate their next steps, which had been granted. He was in “active talks” with officials at the DOJ about dismissing the two cases against the president-elect days immediately following the election.
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