CNN’s legal analyst Jeffrey Toobin told an audience that all federal cases against Donald Trump will surely be dismissed or at least stayed pending the incoming new administration. More intriguingly, Toobin states that even though Smith cannot take any of the evidence to trial he can and almost certainly will release a massive report regarding what he found. The report might rock the nation, or just further set it afire. That report will issue. But I believe it won’t have any value at all if Smith doesn’t take his prosecutor’s hat off before it is written. In name and spirit, Jack Smith must become an independent counsel again and only then write it all up, almost as a historian himself.
Unless Smith renames himself and re-describes his job, his report necessarily has an inherent pro-prosecution bias. The report’s bias will remain totally unchecked by any defensive or even independent review. Maybe he should actually hire a historian to help prepare the written report, there are worse ideas.
Robert Mueller investigated issues pertaining to the 2016 election and provided a similar report and recommendation to the Justice Department. But Mueller did so as an independent investigator and not someone tasked with actually prosecuting the matter. Furthermore, then-Attorney General Bill Barr reviewed that report as another independent protection (Or pro-Trump/review). Mueller’s report was as an “Independent Counsel.”
An independent report that is prepared with the task of recommending whether to charge the matter or move on necessarily compiles the evidence in an objective manner with an evaluation as seen from both a prosecutor’s view and – this is critical – a likely defense to the claim. Independent reports require alternative explanations or descriptions of the matter. The Mueller Report did exactly that.
But Jack Smith’s team moved on from one of independent investigator to government prosecutor mid-way through the appointment. Smith will draft a report put together by one of the world’s toughest prosecutors, one who was preparing for trial against a fierce defendant. As is, the report will not be written with a defense or alternative innocent explanation, only a pointed story that Smith wanted to tell while trying to put Donald Trump in prison.
Smith gathered evidence with the specific bias while saying “let Trump’s team explain this away…” Of course, that’s exactly what a prosecutor is supposed to do. But that same prosecutor is now letting his evidence and theory loose, one unchecked by anyone else. No one will have an ability to explain anything, never mind “explain it away” until it is too late.
So, what should Smith do? Go skiing? No, not yet. Pull back, fast. Either Merrick Garland or Jack Smith should declare Jack Smith’s office to be that of independent counsel again having dismissed the cases (State that the elections made the report moot) and once having done so – challenge themselves with a new assignment under the given title. Promise the public a fully independent review of the evidence along with a commitment to testify before Congress regarding their findings.
Changing their title is much more than form over substance. Good lawyers can quickly shift their ability and task if their assignment changes. And it really matters. Seeing evidence from a new perspective (“I don’t have to envision explaining this to a jury, I can just say what it means in an objective way and write how I would explain it from Trump’s view… “) allows the team to quickly get the actual evidence out with a clean and clear report.
Such an outcome would fulfill two critical purposes. First, the evidence gets out to the American public for review, a “must do” thing to be checked off. Second, it allows the country to heal on its own terms. We either take the time to care about the facts as found and deal with them now. Or, given the current political climate, we may be embroiled in such a political battle that the report itself will be left to historians to tell as we ourselves move forward to new problems, or new opportunities.
Perhaps some might see it as a silly exercise, have Smith pull back to become a wholly independent investigator issuing a report, but I don’t think so. I think a new identity as seen from a new perspective is critical. He needs to talk to Trump’s team. Then, and only then, he should issue a report that does provide a factual rendition of what happened, an explanation of why something might be incriminating along with possible innocent explanations. Smith can appoint three of his staff members to draft a defense to every portion of the report – they can do it. And they’d likely do it so well as to be creepy.
Yes, yes, yes – my recommendation sounds like a cowardly “Middle of the road” approach. But if you are going to examine highly charged evidence impacting the nation at this fundamental level, you better set biases aside.The report must be trusted or it will have no value. That trust starts in the middle of the road and probably ends before getting near the shoulder.
Jack Smith needs to get to the middle of the road first. He and Merrick Garland should draft a new job description and quickly prepare an exhaustive neutral review of all he found.
God Bless: I can be reached at [email protected] and @JasonMiciak
Good job, Jason!
I endorse your ” middle of the road” approach for Smith, as an independent counsel, completely. I didn’t vote for trump because he apparently lacks the qualifications or demeanor to be a head of state. But, he’s here now, again, and how are we going to handle this. We can start with a completely truthful account of everything that trump was involved with. MSM reports trump as the sole reason for why we ended up in the toilet. But he does have the authority to approve the things that were done. Nobody can ever be right or wrong 100% of the time and I would say especially someone who can’t remember anything at all. If that’s the case I suppose that he must have an assistant that is glued to his hip so that when he goes to the dentist he will be able to answer when he brushed his teeth last.
With Mr. Smith in an independent counsel position he could hopefully work with those on trump’s team that could give the answers that we need in order to prevent a repeat.
“First, the evidence gets out to the American public for review, a “must do” thing to be checked off.”
Silly Jason. And exactly HOW does it get to the American public? Do you believe the same media that behaved so cowardly–especially in the weeks immediately before the election–will *suddenly* find the courage to REPORT this information?
Exactly!
Jack smith is brilliant and will do this correctly. He knows the consequences of mistakes.
“An independent report that is prepared with the task of recommending whether to charge the matter or move on necessarily compiles the evidence in an objective manner with an evaluation as seen from both a prosecutor’s view and – this is critical – a likely defense to the claim. Independent reports require alternative explanations or descriptions of the matter. The Mueller Report did exactly that.”
OR
“Smith gathered evidence with the specific bias while saying “let Trump’s team explain this away…” Of course, that’s exactly what a prosecutor is supposed to do.”
I’ll go with the latter thanks. Just present the facts of what happened, the evidence. That is what prosecutors do.
Let them come up with their specious reasoning to explain why those FACTS exist.
Don’t do their work for them, they’ve got a multi billion dollar media machine to do that for them, adroitly adept at coming up with lies.
Just bring us the evidence, not any guesses at what the spin might be.
Just DO your f##*^^g job.
how many people read or listened to explanations of the stuff he already released?
Trump jumpers won’t read that report, however objective it is. Most of them have an attention span of a 3 grade boy (about 5-10 minutes,,and I have experience with kids that age as a school.librarian). And the majority won’t be capable of grasping the legal issues and court decisions that interpret the constitution and various laws and regulations.