Jack Smith: The Three-Time Loser

Poor Jack Smith. In 2012 his prosecution of former U.S. Senator John Edwards failed spectacularly. Smith claimed that Edwards “knowingly and willfully” took campaign donations that were actually designed to cover-up an extramarital affair. Jurors were not convinced and Edwards was not convicted.

Next, Smith went after Gov. Robert McDonnell. This time he was able to secure a conviction for 11 counts related to public corruption. However, the case was dismissed by a unanimous Supreme Court because, as Chief Justice John Roberts wrote, the court could not accept Smith’s “boundless interpretation of the federal bribery statute.”

Smith struck out for a third time with his failure to convict candidate Donald Trump. That case included 3 major claims, and each comprised a patchwork of faulty assumptions and assertions.

1. Claim: Trump incited a riot

Jack Smith needed a riot. Without one, there would be no public support for prosecuting a former president. But that was a major problem for Smith because there was zero evidence linking President Trump to the January 6^th violence. To the contrary, there was powerful evidence showing that Trump tried to encourage peaceful conduct— especially in the three days prior to January 6th.

Although Trump told the crowd at the Ellipse to be “peaceful and patriotic,” he had already taken powerful steps to promote peace.

The sworn testimony of General Mark Milley and Secretary of Defense Christopher Miller clearly prove that Trump had no violent intentions. (See report of House Administration Subcommittee on Oversight.)

GENERAL MARK MILLEY, JOINT CHIEFS OF STAFF: (1/3/21) “The President just says, ‘Hey, look at this. There’s going to be a large amount of protesters here on the 6th, make sure that you have sufficient National Guard or Soldiers to make sure it’s a safe event.’....I don’t care if you use Guard, or Soldiers, active duty Soldiers, do whatever you have to do. Just make sure it’s safe.”

CHRISTOPHER MILLER, ACTING SECRETARY OF DEFENSE: (1/5/21) “The President commented that they were going to need 10,000 troops the following day...” Miller (a critic of President Trump) later stated that he ignored Trump’s directions: “There is absolutely no way I was putting U.S. military forces at the Capitol, period.”

If Trump was trying to incite violence, why was he strongly urging his subordinates to maintain peace?

2. Claim: Trump planned to submit “fraudulent slates of presidential electors.”

Smith claimed that Trump engaged in a criminal conspiracy to create “fake” slates of electors that would be used by Mike Pence to steal the election victory from Joe Biden. That is nonsense.

If Trump had a plan to get Mike Pence to accept phony slates of electors, that plan was already discarded before January 6. Instead, the strategy was to convince Pence to delay the certification date.

On January 5, 2021, several Republican state legislators sent a letter to Vice President Mike Pence, requesting a 10-day extension of time to certify the election. They would use the additional time to investigate election issues.

Trickery was not involved, and the slates were not “fake.” None of them had been signed by a state executive, and none had a state seal. Although the alternative electors signed their names on these draft documents, the essential signature of the governor (or Secretary of State) was absent in each case. In other words, they were only unused draft documents.

These distinctions become clear in Figure 1, where a photo of Arizona’s so-call “fake” certificate is shown on the left, and the final certificate is on the right. Who could possibly confuse the two documents?

fig. 1

However, there is one slate of electors that truly was deceptive. It is the one used by Democrats during the Kennedy/Nixon election. Unlike the 2024 slate of certificates, the Kennedy/Nixon slate falsely claimed that it came from the “executive of the state,” who was, effectively, Hawaii’s governor. (See red underline in Fig. 2.)

fig. 2

In retrospect it is fortunate that V.P. Mike Pence rejected the call for an extension. The swing states were mostly controlled by Democrats and never-Trumpers, and nothing could have forced them to conduct meaningful investigations.

Jack Smith had no basis for charging people with conspiracy to use “fake” electors. The “fake” electors were simply names on draft documents that were never employed.

3. Claim: Trump knew there was no fraud in the election?

Each of us, including the president, has a first amendment right to express his or her opinion, whether that opinion is correct or wrong. For Smith, this was a huge problem, which he tried to solve in the following way: His strategy was to claim that Trump was only pretending that he won, in order to create a riot. It was a ridiculous claim for which there was no evidence.

After reviewing 13 million pages of evidence, and after interrogations of hundreds of people, Smith could not produce a shred of evidence showing that Trump secretly knew he lost the election. It is nowhere in the indictment, in Smith’s “Final Report,” or in the 13 million pages of evidence obtained by the Trump defense team. I was part of a large defense team that reviewed the evidence extensively.

It is true that Smith identified people who told Trump there was no significant fraud. However, those statements proved nothing because there were many other people who told Trump the exact opposite.

Why would Trump assume that he had lost when there was significant evidence of fraud of two types? 1) specific ballot corruption and 2) violations of election rules and audit standards.

An example of specific ballot corruption is the complete inability of the PA Secretary of State to match between 91,000 and 121,000 votes to registered voters. Another example is the manipulation of thousands of ballot images in Georgia.

On the other hand, there were violations of election rules and audit standards that included findings such as these:

• Failure to maintain required videos of ballot drop boxes

• Failure to review voter signatures in Michigan and Georgia, as required under state law

• Failure to maintain required “chain of custody” documentation

• Failure to investigate specific claims of fraud (e.g., the report of 35,000 phony ballots in Pima County Arizona or the allegations made by multiple postal workers).

• Failure to obtain legally-required ID from thousands of voters in Wisconsin

• The processing of ballots received after the legal deadline

Democrats claim that these matters were adjudicated by judges, however, 66 percent of court cases were dismissed on the basis of process arguments (e.g., lack of standing, laches, jurisdiction).

New Issues to investigate

In recent days, House investigators have raised additional concerns regarding Jack Smith and his prosecution of President Trump. These must be pursued:

• Why did Jack Smith want the court trial to begin just 5 months after the indictment? It would be impossible for Trump’s lawyers to review 13 million pages of evidence in 5 months. That would be 85,000 pages per day!

• Why was Smith secretly tracking the telephone calls of several high-ranking Republican officials?

• Why did Smith consider Speaker McCarthy to be a flight risk?

• Did Smith ignore federal guidelines regarding the prosecution of government officials shortly before an election?

• Did Smith take his oath of office after working for 10 months on the case?

• In the indictment, Smith lists six co-conspirators, yet Trump was the only person charged. Why?

Incredibly, this case was dismissed without prejudice. Is it possible that Mr. Smith wants to be a four-time loser?

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