How Donald Trump finally met his match in Jack Smith

Smith sussed out his quarry as meticulously as Ahab sussed out the white whale, Harry Litman writes

Jack Smith (C), Tanya Chutkan (L), Donald Trump (R) (AFP/REUTERS/EPA)

The latest indictment against Donald Trump for conduct growing out of the post-election efforts to retain power reveals what a formidable adversary Trump has collided with in Jack Smith.

The supposed watchword of Smith’s investigation from the start has been to treat Trump like any other defendant. Indeed, a chief charge in the indictment - obstruction of an official proceeding - already has been brought against some 300 of the marauders; how could a fair justice system give a pass to the man who spearheaded it?

But this conventional storyline overlooks the several ways in which Smith has acted with careful attention to Trump’s qualities and weaknesses. Smith is the very antithesis of a generic prosecutor: he has sussed out his quarry as meticulously as Ahab sussed out the white whale.

As of two weeks ago, the prospect of the former president facing a measure of justice before the November 2024 election was uncertain at best. With the lucky draw of Judge Cannon in the Mar-A-Lago case, Trump looked well positioned to run out the clock until after the presidential race. The upshot would be that voters would go to the polls ignorant of whether a candidate had been found, beyond a reasonable doubt, to have perpetrated dangerous crimes against the democracy.

Enter Jack Smith, who had already been working at near warp speed in the eight months since his appointment. He crafted an indictment that discerns Trump’s broader political strategy and looks to neutralize it.

First and foremost, Smith’s indictment is built for speed. The most important feature of the charging document is the caption: USA versus Donald Trump, and nothing more. The indictment reveals that there were six co-conspirators for Trump’s crimes. It might have been expected that they too would be charged; Smith avoided that path, realizing that notwithstanding its upsides, it would multiply the potential for delay.

We will have an initial schedule at the end of the month after the first hearing before Judge Tanya Chutkan, but the broad consensus, and my surmise, is that Chutkan will set a date for next spring, and - even with normal give in the schedule - it has become likely that the country will hear the jury’s verdict well before November 2024.

Second, Smith skillfully anticipated Trump’s chief defenses and tacked around them in the indictment. He included a paragraph early in the charging document specifically acknowledging Trump’s right to political speech. The conduct he chose to charge carves off the notorious speech on the ellipse. That speech plainly incited much of the melee on January 6, but it also raised nettlesome legal issues of political speech that Smith wisely chose to finesse.

Now, notwithstanding Trump supporters launching a media blitz alleging that the indictment attacks political speech, it is easy to make quick work of the argument given the conduct Smith actually charged, and it’s unlikely to get purchase in pre-trial motion practice in Judge Chutkan‘s court.

Relatedly, Smith chose not to charge a crime that many were anticipating, namely sedition or seditious conspiracy. The department had already made the decision to pursue that most serious of available charges in the case of the most culpable actors on the ground, such as Stewart Rhodes. In a way, it would be the most condign charge for the treacherous conduct that Trump subjected the country to in real time on January 6.

But Smith wisely calibrated that the charge, which has a checkered history, was more trouble than it’s worth, and that the conspiracy and obstruction charges would be sufficient retribution for Trump’s wicked acts.

Even this weekend, after Trump published an outrageous social message proclaiming, in all caps, if you go after me I’m coming after you, Smith did not hesitate to bring it to the attention of the court. That gives him a certain kind of upper hand, because the court can and likely will dress Trump down and warn him of severe consequences should he continue to endanger court personnel and pollute the jury pool.

Smith is no doubt a rule-of-law, by-the-book prosecutor; but to Trump’s misfortune, he is more than that: he is a skilled fighter who knows how to analyze his adversary’s vulnerabilities. As a consequence, the odds that the country will be able to know the verdict on Trump’s alleged crimes before the election has increased dramatically. Whether you’re pro, con, or undecided on Trump, that is a good thing for the democratic process.