The Journal. - Meet Jack Smith, the Special Counsel Prosecuting Trump

Episode Date: August 10, 2023

Jack Smith, the special counsel who brought two indictments against former President Donald Trump, has developed a reputation as an aggressive prosecutor known for trying high-stakes, politically explosive cases. But WSJ's Sadie Gurman says Smith has a mixed record on convictions. Further Reading: - Jack Smith Is Known to Take On Tough Cases. But He Doesn’t Always Win  - Trump’s Lawyers Argue Protective Order Would Violate His Free-Speech Rights  - New Definition of ‘Fraud’ Wipes Out High-Profile Prosecutions  Further Listening: - What Will Trump's Third Indictment Cost Him?  - Donald Trump Is Charged on 34 Felony Counts  Learn more about your ad choices. Visit megaphone.fm/adchoices

The attack on our nation's Capitol on January 6th, 2021, was an unprecedented assault on the seat of American democracy. That's Jack Smith, the Justice Department's special counsel. He's prosecuting former President Donald Trump for his role in the January 6th Capitol attack. It's described in the indictment, it was fueled by lies. Lies by the defendant, targeted at obstructing a bedrock function of the U.S. government, the nation's process of collecting, counting, and certifying the results of the presidential election. And Trump hasn't been shy about sharing his opinion of Smith. The prosecutor in the case, I will call it our case, is a thug.

I've named him Deranged Jack Smith. Smith is leading two cases against the former president, for the Capitol attack and for his handling of classified documents. Trump has pleaded not guilty in both cases. It's historic. It's unprecedented. Never before in American history have we seen a former president accused of federal crimes. And never before in history have we seen the Justice Department taking these investigative steps. Our colleague Sadie Gurman reports on the Justice Department taking these investigative steps. Our colleague Sadie Gurman reports on the Justice Department.

And she says Smith is an aggressive prosecutor. Jack Smith is somebody who has a reputation for not shying away from big, tough, politically explosive cases. Smith is not going to give Trump's team an inch. He's going to fight for every single thing. And they believe they're on solid footing. They're going to make their stand. They're not going to back down.

Welcome to The Journal, our show about money, business, and power. I'm Jessica Mendoza. It's Thursday, August 10th. Coming up on the show, who is Jack Smith, the man prosecuting former President Donald Trump? When it comes to smart water alkaline 9.5 plus pH with antioxidant, there's nothing to overthink. So while you may be performing mental gymnastics over whether the post-work gym crowd is worth it, if you'll be able to find a spot for your yoga mat,

or if that spin instructor will make you late for dinner again, don't overthink how you hydrate. Life's full of choices. Smart Water Alkaline is a simple one. What kind of prosecutor is Jack Smith? He is somebody who is willing to tackle even the most complex public corruption type cases. He's somebody who has experience on both the local and international levels. He's a registered independent, and he has a reputation for being an apolitical figure,

somebody who was trusted within the Justice Department. Jack Smith went to Harvard Law School. He graduated with honors and then decided to work as a prosecutor. He eventually made his way to the Eastern District of New York's office. While he was there, he didn't back away from high-stakes cases. The one that comes to mind for me is in 2002, he was picked to be one of the lead prosecutors in the retrial of an NYPD officer who was accused of aiding in the torture of Haitian immigrant Abner Louima. This was a case that really captured public attention

at the time. Haitian immigrant Abner Louima was mistakenly accused of being involved in a fight at a nightclub in Flatbush. Cops with Brooklyn's 70th Precinct then beat and sexually assaulted Louima with a plunger at the station house. It was a case that incited a lot of emotions in the public. There were protests outside of the courthouse daily as this was going on. No justice! No justice! It was high stakes locally, and Smith was ready and able to tackle that case. Smith took over the case and won a conviction. Smith moved to Washington, D.C. in 2010,

when he was recruited to run the Public Integrity Section within the Justice Department. So the Public Integrity Section has a pretty highfalutin name that's very broad. It actually encompasses a lot of different investigative work. It's called the Public Integrity Section, or PIN. It investigates political figures, politicians, on the state, federal, and local levels

for all kinds of different misconduct and corruption. What was Smith's job there? He began immediately reviewing some of the long-running investigations into political figures like members of Congress, and he actually recommended closing several of them without criminal charges. That led to some criticism that the section had gone soft under his leadership, which he sharply rejected. And in fact, shortly after that, we saw the section's

courtwork began to increase. He worked to improve the team's trial skills, and they began taking bigger cases to trial. By looking at Smith's time at PIN, you can see the outlines of his strategy as a prosecutor. He brought cases, a lot of cases, to trial. And he won some big convictions, including years-long prison sentences for former lawmakers in Arizona and Virginia. But several of his high-profile cases were not as successful. That's the thing about many of Smith's cases. I mean, some of them are not clear-cut victories. And, you know, in talking to some people who had worked with him, they said he's a prosecutor,

and if a prosecutor only wins his cases, he said he's a prosecutor. And if a prosecutor only wins his cases, he's not bringing hard cases. He's not bringing high stakes cases. And we saw that in particular during his time in the public integrity section. One example of this is the 2012 trial of former U.S. Senator John Edwards. Smith's team charged Edwards with violating campaign finance laws to help cover up an extramarital affair. In that case, the jury acquitted Edwards on one charge and failed to reach a verdict on the other five, which led to a mistrial. Smith's office also eventually lost in a major case against former Governor Bob McDonnell of Virginia. McDonnell accepted $175,000 worth of loans and gifts from a businessman with

interests in front of the state. A jury did rule in favor of Smith's team. They convicted McDonnell on 11 counts of corruption-related crimes. But the case was appealed and made its way to the Supreme Court. And the justices there were unanimous. The Supreme Court overturned McDonald's conviction, saying that prosecutors needed to show an explicit quid pro quo between gifts or donations and official actions to bring certain corruption charges. So the Supreme Court was saying that Jack Smith's definition of fraud was too broad. That's right.

Now, that case was kind of unique because prosecutors had brought the case under an aggressive theory of corruption that lower courts actually affirmed. But the high court narrowed the scope of behavior that was covered by federal law. by federal law. And Chief Justice John Roberts said in that case that the department's theory was so broad it could criminalize ordinary constituent service and other conduct that politicians engage in routinely. Sadie says that the McDonald case shows that Smith is willing to pursue

a broad definition of corruption, one that his critics say amounts to overreach. And that's partly because opinions differ on exactly when an elected official crosses the line and actually breaks the law. Smith is basically trying to paint for jurors a clear line of where sort of the messy business of politics becomes a crime.

And that is a big challenge for public corruption prosecutors in any environment, is showing at what point an action actually veers into criminal conduct. And it's sometimes subjective. And so what Smith is doing in many of these cases is clearly trying to lay that out. How would you say his work at PIN shaped his approach as a prosecutor? I mean, I think that sort of the mixed record emerging from Smith's time in PIN sort of made him even less afraid to take on bigger cases and rely on federal statutes

that have gone either way in court. And so I think that this experience well positioned him on federal statutes that have gone either way in court. And so I think that this experience well positioned him to do the kind of work we're seeing him doing today. After his stint at Penn, Smith took a job at the International Criminal Court in The Hague. It's a tribunal that prosecutes war crimes. But he would soon return to Washington for what might end up being the most challenging role of his career.

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Life's full of choices. Smartwater is a simple one. Need a great reason to get up in the morning? Well, what about two? Right now, get a small, organic, fair trade coffee and a tasty bacon and egger breakfast sandwich for only $5 at A&W's in Ontario. Since leaving office, Donald Trump has faced several investigations. In New York.

The case centers on an alleged hush money payment made to adult film star Stormy Daniels during the final days of the 2016 presidential campaign. In Georgia. President Trump and the recorded conversation, the phone call with the top Georgia election official asking him to find 11,780 votes and saying there's nothing wrong with saying you've recalculated. And the two at the federal level for his alleged mishandling of classified documents and for his role in the January 6th Capitol riot. Last November, Attorney General Merrick Garland appointed Jack Smith as special counsel

to take over the two federal investigations. Explain to us what a special counsel is. So a special counsel is typically appointed by an attorney general in a situation where he perceives there to be a conflict of interest. They operate with a degree of autonomy. They have to inform Justice Department higher-ups when they intend to make a significant decision. But their daily decision-making, their daily actions are not supervised by the Justice Department. And so this allows them to proceed without,

you know, theoretically, without the perception of political interference. When Smith arrived at the Justice Department, he inherited a team of prosecutors who'd already been working on both investigations. Almost as soon as he began working on these cases, we saw them accelerate on multiple tracks. We began to see grand jury activity pick up in both cases. We began to see more and more witnesses going into the grand jury. And I feel

like the Justice Department had taken sort of a cautious approach toward investigating Trump himself. So I think as soon as we saw Smith take over, the stakes and the likelihood that he would be indicted went up. In June, Smith indicted Trump in the documents case. And then last week, he indicted Trump in the January 6th case. Today, an indictment was unsealed, charging Donald J. Trump with conspiring to defraud the United States. OK, so, Sadie, can you remind us what Trump was charged with? What he's laid out in this 45-page indictment is a pretty detailed portrait of what Smith says are Trump's efforts to prevent the peaceful transfer of power to his successor. It's the first time in American history that we've seen these charges leveled at a former president,

and the first time it's happened. This document is pretty much the most detailed portrayal yet. Basically, it's a portrait of Trump's efforts to press claims that the election had been marred by fraud. Even though he'd been told time and time again those claims had no merit. It shows how he leaned on officials in battleground states he lost like Arizona, Georgia and Michigan to support those efforts. And after those efforts failed, the indictment says that Trump pushed his own Justice Department to falsely claim fraud. And very notably pressed then Vice President Mike Pence to overturn the results. There's a very pointed part of the indictment that Smith points to in which Trump

tells Pence at one point, you're too honest, and then calls his supporters to Washington and urge them to, you know, fight like hell just before they march to the Capitol. before they marched to the Capitol. Last Friday, Trump posted a message on his Truth Social platform. It said, in all capital letters, You go after me, I'm coming after you. Not long after, Smith requested a protective order against Trump. I feel like we're constantly improving our legal vocabulary as we follow these cases.

What is a protective order? So this is a pretty perfunctory step that prosecutors take in almost every criminal case. And it's just, it's not a gag order. It's just designed to prevent the evidence from leaking into the public view. And so prosecutors are saying if Trump got a hold of the names and identities of the people who testified against him, he would make them public and he would potentially put them at risk, put their safety at risk, jeopardize the case. What was Trump's response to Smith by preventing him from talking about the evidence that he may or may not see in the course of this criminal case. The Justice Department Smith's team immediately fired back with a very strong response that accused Trump's defense team of trying to try this case in the media.

It was very plain spoken language. It said Trump wants to try this case in the media. It was very plain spoken language. It said Trump wants to try this case in the media rather than in the courtroom. And so it was an aggressive response and it was a clear and very straightforward response and it was fast. And for Jack Smith himself, the special counsel, right? Like what are the stakes for him or what's at stake for him?

Well, you know, certainly his reputation is at stake. You don't want to be the first federal prosecutor to bring criminal charges against a former president and lose your case. And so, you know, he's got a lot on the line here, but he is somebody who's shown throughout his career that he is not afraid to lose. But he is somebody who's shown throughout his career that he is not afraid to lose. I'm curious, you've talked about him or the way that people have viewed him over the years as an apolitical figure. Win or lose, do you think he'll still be considered that way after this? No, I don't. I think what you saw with Special Counsel Robert Mueller is, you know, he was a longtime law enforcement official, a Republican military veteran, and he was painted in a pretty lasting way as a liberal. And I mean,

for people who strongly support Trump, Jack Smith will always be viewed as a political enemy, as a credul of the Biden administration trying to undermine Trump as he makes another bid for the White House. What is the feeling among the legal community about Smith's strategy in prosecuting the former president? According to some critics, this could be seen as a far-reaching interpretation of fraud and conspiracy statutes. And so even if he gets a conviction in court, there's a chance that that might not be the end of the road. I mean, some of the legal experts we have talked to have said this is a very strong case

and he has Trump dead to rights. He has amassed a lot a lot of evidence and interviewed a lot of witnesses and so some legal experts are viewing this case as a strong one i had one legal expert tell me that this case is on the frontiers of american jurisprudence because it's an example of a federal prosecutor using broad and general conspiracy and fraud theories to go after a politician for what some could argue is just sort of the messy business of politics. Today, Smith proposed January 2nd, 2024 as the trial date for the January 6th probe. That's two weeks before the first votes will be cast

in the Republican presidential primary. That's all for today, Thursday, August 10th. The Journal is a co-production of Gimlet and The Wall Street Journal. Additional reporting in this episode by James Finelli. Thanks for listening. See you tomorrow.