Jack Smith: Unasked Questions and Surprising Possibilities

Was your initial reaction to Merrick Garland’s announcement of a Special Counsel, “Who is Jack Smith?” I daresay all of us who’d never heard of him wondered who he was. I mean, he has such an unprepossessing name.

But then we saw a photo of the bearded Smith in the black and purple robe and thought, “He looks scary” quickly followed by “Trump isn’t going to like this!” accompanied by broad grins and a reminder to buy more popcorn.

We paid attention to former colleagues who knew Smith well and were reassured by their sincere praise of a man who was considered a rising star in his first year out of Law School. It was interesting though that none of them had considered Smith as a candidate for Special Counsel before the announcement, and while they were obviously pleased by Garland’s choice, they seemed surprised as well. Probably they assumed the AG would select a prosecutor working in the US rather than someone based overseas. After all, the US boasts a wealth of expertise when it comes to ace prosecutors.

So why did AG Garland look outside of the US when there are so many quality candidates at home? I expected that the legal experts on MSM, social media and the top legal podcasts would answer this question, and they did, sort of. But they focussed on why Smith was well-qualified for the position without pausing to reflect that, really, when they thought about it, a great many other prosecutors were just as well qualified.

They cited his role in DoJ as head of the department’s Public Integrity Section which involved the prosecution of politicians and government officials. They stressed his apolitical approach to public corruption cases, the inference being that Republicans could have no objection to Smith on the basis of political bias. (Given our collective experience of Republicans in recent years, that was an argument so lacking in realism it could only feel at home when shelved in the fiction section.)

But Jack Smith is not the only person to have served in that role in DoJ. There are others who have the same shiny career high in their bios, who also did a great job and didn’t exhibit any political bias.

The problem is all these legal experts were giving answers without posing the question: why Jack Smith? Yes, the answer does presuppose the question… up to a point. His seven years of experience in the International Criminal Court (ICC) in The Hague is outstanding but not a job requirement for the position of Special Counsel. It does have the advantage of scaring Trump and his lawyers silly but that’s not a consideration Garland would have entertained – I did, along with countless others, but I’m sure it wasn’t on the AG’s list of qualifications. Garland wanted a preeminent prosecutor and he got that plus extras. Smith is almost over-qualified.

That’s why I wondered, “Why Jack Smith?” I wasn’t against Smith’s appointment, on the contrary. I just felt there was more to it.

And there was more, specifically about the timing of the announcements. At a limp flag affair, Trump declared his candidacy on the evening of November 15, 2022, and less than three days later, on the morning of November 18, Merrick Garland held his press conference to apprise the media of his Special Counsel appointment.

No one queried the timing because everyone went straight to the answer: Garland appointed his choice for Special Counsel because Trump announced his intention to run in 2024 and the AG wanted to avoid the optics of taking legal action against a political opponent of his boss. Now that’s both true and understandable but the problem with it is the third essential person in this triangle: the appointee.

How is it that Jack Smith, Chief Prosecutor for Kosovo war crimes in the ICC, who was just 4 months into his second 4-year contract term, was able to drop everything in The Hague to rush back to an impermanent position in DC for an unspecified period of time?

Then there’s this: Smith missed his flight back to the US on November 19, the day after his appointment, because he had to have emergency surgery on a knee he’d injured in a bicycle accident. Who is packed up and ready to board an international flight just hours after accepting a new position? Did he not have to give the ICC notice?

Initially, I thought AG Garland must have contacted Jack Smith several weeks or even months earlier and set up the appointment with him then. Even so, neither of them could possibly know when lip-flapping, loose-cannon Trump would announce.

So now it wasn’t just “Why Jack Smith?” but also “How did they organise it all so quickly?”

But these were little thoughts that no one else had addressed and they were easily overwhelmed by the cacophony in the busy amphitheatre of American politics. Until yesterday. That’s when I heard something that lit up a neural pathway like steel striking flint.

What if US AG Merrick Garland was not the one who reached out to Jack Smith? What if it happened the other way around? What if Jack Smith approached AG Garland? What would that mean?

If Smith was the one persuading Garland to take him on as Special Counsel and using Trump’s declaration as the reason, that opens up a plethora of new and very interesting possibilities that are worth exploring.

Let’s begin with motive: why would Smith or, in the more likely scenario, the ICC need Garland’s cooperation to place Jack Smith in charge of the Trump investigations? If an ICC team of investigators wanted to delve into Trump’s links with international crimes, why would they need to do it covertly?

A quick check of ICC history delivered the answer: the USA is not a signatory to the Rome Statute which established the International Criminal Court in 1998. From “The Human Rights Brief” by Teresa Young Reeves, American University Washington College of Law:

The United States opposed the Rome Statute because of its concern that it might one day have to surrender a citizen, particularly a member of its government or armed forces, to the jurisdiction of the International Criminal Court (ICC).

In spite of compelling reasons to do so, America has not corrected course at any time in the 25 years since.

Only an American in America with federal jurisdiction can legally investigate Trump’s crimes. Moreover, only an American in America with federal jurisdiction AND seven years of experience in ICC cases, investigations, prosecutions and convictions is going to know what questions to ask to elicit information about international crimes and the people and infrastructure that connect them.

Enter Jack Smith. I like to think the plan was his idea but I accept that we’ll never know if such a plan ever existed let alone discover who came up with it.

For several months, Lawrence Tribe had been advising his former student Merrick Garland from the journalistic sidelines. Here is the opening paragraph of Tribe’s opinion piece in The Washington Post on March 9, 2022:

The time has come for Attorney General Merrick Garland to appoint a special counsel to investigate Donald Trump. That step offers the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges.

In the past, Garland had always been open to Professor Tribe’s advice but this time his mind seemed shuttered to the idea. Many, including me, were wondering why Garland didn’t get on with it. But a far more rational and compelling explanation for Garland appearing to drag his feet — much to the chagrin of legal and non-legal watchers alike — is that he was waiting until Jack Smith was ready to step in.

And when the time came, there’s no doubting Jack Smith was ready from day one. His bicycle accident delayed his return to the United States but not the execution of the tasks he’d set himself as the newly-appointed Special Counsel. His schedule was prepared (as though he’d spent days if not weeks working on it) and it went into immediate effect.

The Washington Post reported that in the 12 days remaining in November 2022,

Special counsel Jack Smith has sent grand jury subpoenas to local officials in Arizona, Michigan and Wisconsin — three states that were central to President Donald Trump’s failed plan to stay in power following the 2020 election — seeking any and all communications with Trump, his campaign, and a long list of aides and allies.

Did he need to convene the grand jury before it could issue those subpoenas or did he use one that DoJ had already empanelled? Either way, he was prepared and knew exactly what and who he wanted to subpoena and where they were. Even holidays didn’t slow him down.

AG Garland tasked Special Counsel Smith with investigating Trump’s mishandling of government records and the attempt to overturn the results of the 2020 presidential election. The latter has split into two overlapping investigations: the fake electors’ scheme and the Jan 6 insurrection. Smith is investigating all three simultaneously and has at least two grand juries empanelled.

It is now the first week of March 2023 and less than four months in, Smith is already up to Trump’s lawyers, family members and closest advisers in the subpoena stakes. It isn’t that he’s in a hurry; he’s just supremely organised and I’m willing to bet he already has several endpoints in his sights.

Will Jack Smith provide information to ICC investigators? Only if it’s both pertinent to their investigations and legal to do so. If there is such a plan, it’s very clever. Not that we’ll ever know. But keep an eye out.

UPDATE:

Garland is seizing the assets of all the oligarchs that helped trump win in 2016 and I’m here for it. Igor Sechin met with Carter Page in Moscow and promised him 19% of the Rosneft sale if he could get trump to end Ukraine-related sanctions on Russia. 1/ https://t.co/F5Tf3BWheE

— Mueller, She Wrote (@MuellerSheWrote) March 9, 2023

Isn’t it interesting that AG Garland is seizing the assets of Russian oligarchs only after Jack Smith is appointed? Makes you wonder…

Michelle is on Twitter as @Mopshell