Jack Smith’s Reckless Gamble

There’s an unforgettable scene in Good Will Hunting in which Matt Damon’s character, in a session with a therapist played by Robin Williams, talks about his childhood with an abusive father. Damon says, “He used to just put a wrench, a stick, and a belt on the table and just say, ‘Choose.’” “Well, I gotta go with the belt there, Vanna,” answers Williams as the sensitive, wisecracking therapist. Damon responds, “Nah, I used to go with the wrench … cause fuck him, that’s why.”

Jack Smith, it seems, is choosing the wrench. As his 2020 election-subversion case gets back on track after the Supreme Court’s landscape-shifting immunity ruling, Smith has taken a defiant tack that likely will hurt his own cause and perhaps eventually end it altogether.

We’re past the point of arguing whether we like the Supreme Court’s July 2024 immunity decision. The justices have spoken, and this is now our legal reality. The Court established new rules governing prosecutions of a president or former president. All presidential conduct, the Court declared, falls into one of three categories.

First, at the top level, we’ve got the president’s “exercise of his core Constitutional powers.” These acts, the Court explained, are “absolutely immune” and cannot form any part of a criminal case. The Court specified that Trump’s interactions with the Justice Department — which consumed a chunk of Smith’s original indictment — qualify as such. Smith obediently removed those allegations when he obtained a slimmed-down superseding indictment in late August. Message received.

And at the bottom level, the Supreme Court ruled, we’ve got a president’s private acts as a citizen or a political candidate, which are entitled to no immunity. The Court indicated that Trump’s efforts to pressure state and local officials to throw votes his way likely fall under this heading. Smith, accordingly, kept these allegations in his new indictment.

But in between we’ve got a middle level — and that’s where Smith’s troubles begin. Any conduct that falls outside the president’s core Constitutional duties but still within his official powers is “presumptively” immune — meaning we start by assuming it’s immune, unless the prosecutor can prove clearly that the conduct had nothing to do with the job itself. Definitionally, it’s an uphill climb for Smith.

As an example of conduct that falls within this middle ground, the Court cited Trump’s interactions with Vice-President Mike Pence, including Trump’s pressing of Pence to reject electoral votes on January 6. Given the Court’s instruction, it would’ve been safest for Smith to remove the Pence allegations from his new indictment. But instead, Smith left the Pence allegations largely intact, only tweaked at the margins.

During last week’s court appearance, Smith confirmed that he intends to proceed with the Pence allegations. Trump’s lawyers, of course, responded that the entire indictment is defective and that the Pence interactions are protected by immunity. Judge Chutkan appeared to side initially with the prosecution, as she has done throughout this case.

And that’s where the good news ends for Smith. Even if Judge Chutkan does agree with Smith that the Pence allegations can remain in the case, Trump gets to appeal that determination before trial. So the Pence question, among others, will likely end up right back at the Supreme Court.

Let’s remember that this is a Court that already reversed Judge Chutkan, big time (to borrow another Damon quote from Good Will Hunting), on her original ruling that presidential immunity does not exist at all. The Court excoriated her for “the expedition of this case, the lack of factual analysis by the lower courts, and the absence of pertinent briefing by the parties.” And the Court gave a hint — and more — about its view of the Pence evidence: “presumptively immune.” Not quite automatic, but close.

Maybe Smith will persuade the Supreme Court over to his side. After all, Trump’s conduct toward Pence was seemingly motivated by his desire not to do the job of president but rather to steal an election. But the Court appears uninterested in probing inquiries into good or bad faith. To the contrary, the Court noted, the trial judge must differentiate official from unofficial acts “without considering the President’s motivations.” In other words, the Court said, it doesn’t care whether the conduct was good or bad. It cares whether the president did something that, on its face, is something presidents do — and “talking to the vice-president” probably qualifies.

If the Supreme Court removes the Pence allegations from Smith’s case, it’s just about all over for the prosecution. Smith loses another pillar of his indictment, and it’s not clear he can tell his story in a coherent manner without the Pence angle. Even if he wanted to proceed, Smith would have to go back to a new grand jury — for a third time — to obtain yet another, even slimmer superseding indictment. At that point, Smith might wave the white flag and dump the case altogether. He might have no choice.

The news for Smith isn’t all bad. While his January 6 case circles the drain, he likely will succeed in reviving his other case, the classified-documents case in Florida. That case is officially dead (for the moment) following a dismissal by District Court Judge Aileen Cannon, who found that Smith’s appointment as special counsel was, in itself, unconstitutional. Smith is now appealing that ruling, and I’m confident he’ll prevail; the heavy weight of prior decisions from other federal courts favors the special counsel here. So Smith’s two cases could ultimately reverse their current positions: The newly revived January 6 case never makes it to trial, but the currently-dismissed classified documents case does. (That’s if Trump loses the presidential election, of course; if he wins, he’ll have them both thrown out by his new attorney general.)

Smith’s history matters here. Despite the rush to crown him as some infallible giant-slayer immediately upon his appointment as special counsel in November 2022, the reality is Smith’s career is stained with high-profile failures born of prosecutorial overreach. He supervised, at various points, spectacularly failed prosecutions of Virginia governor Bob McDonnell, former North Carolina senator and presidential and vice-presidential candidate John Edwards, and New Jersey senator Bob Menendez (the first case, which was dismissed in 2018, not the recent successful prosecution). Smith’s name is on the first two indictments as the supervising attorney, and he was involved in the early stages of the Menendez investigation.

Now Smith — like the Matt Damon character — has seemingly decided that if he’s going to go down on the January 6 case, he’ll go down hard, and to hell with it all. Don’t be surprised if, in the end, Smith’s defiant approach seals his own demise.

This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at cafe.com.