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| Jack Smith |
The Wall Street Journal put two columns on its "Opinion" page on Friday, January 17, 2025. As I read them, it struck me that these two, separate opinion columns were related.
At the bottom of the Opinion page, a column by Alan M. Dershowitz and Andrew Stein was titled, "Jack Smith's Half-True Report." Smith, should you have forgotten already, was the Special Counsel who investigated potential violations of law by Donald Trump, this investigation taking place after Trump left the presidency in 2021. Smith filed a report on his investigations in mid-January of this year, after Trump had already been reelected to the presidency. Smith then promptly resigned his office.
Dershowitz and Stein complain in their column that Smith's report went beyond where it should have gone, since that report by the Special Prosecutor directly claimed that the evidence provided in the report was "sufficient to convict Mr. Trump." According to Dershowitz and Stein, this was an overreach because the function of this report was to state whether or not there was probable cause to bring Trump to trial. Whether there was enough evidence to convict Trump, after a trial, was a question for a jury, not the prosecutor.
I will concede that there is some legitimacy to this claim. In fact, it would have been better for Smith to have commented only that he thought the evidence was more than sufficient to bring the former president to trial, and to leave it at that. However, let's remember that then-former president Trump and his lawyers did everything they could to prevent such a trial from ever taking place - and they were successful in their efforts. The former president, thus, successfully prevented any jury from ever having a chance to evaluate the evidence found by the Special Counsel. This fact, I am pretty sure, is what tempted Smith into making the statement he did.
Unacknowledged by Dershowitz and Stein was the fact that the public's right to have the evidence of the former president's possible crimes considered by a jury was significantly more important than the right of Trump to have Smith keep quiet about Smith's personal opinion that the evidence on which Smith reported was sufficient to have supported a jury verdict against the former president.
The other column on The Wall Street Journal Opinion page was a column by Kimberley A. Strassel, titled, "The Left's Mangled Guardrails." In this column, Strassel complained about the investigation of Trump after he left office in 2021, at the conclusion of his first term in office. Strassel called the investigations of Trump (by Smith, among others) "lawfare." Her basic complaint seems to be that once there was a new president, any investigation of the former president should have been terminated, and that to carry out further investigations was simply "political," and should never have happened.
Strassel, though, never once notes that there was ample evience that the former president had attempted to mount a "coup," to remain in power even though he lost the 2020 election, and that numerous other people were convicted of criminal violations after jury trials for their conduct on January 6, 2021. Surely, many people would expect that if a former president had violated the law himself, while in office, the people of the United States should have a right to bring such a former president to trial (although it seems that the Supreme Court may not take that view).
It certainly would have been much better for president Biden, politically, if the Justice Department had not found itself engaged in its various investigations of former president Trump. These investigations were politically divisive and destructive. The political impacts of these investigations were bad. Horrible, in fact, and this is not even to mention the horrible legal impact of the Supreme Court's decision, coming out of those investigations. But.... The Wall Street Journal's complaints about these legal proceedings never take account of the fact that there was ample evidence that former president Trump (now president again) violated his Oath of Office, and the law, in attempting to retain presidential power after being defeated for reelection in 2020. Ultimately, a jury should have decided whether Mr. Trump was guilty, or not. Because of Mr. Trump's successful efforts to delay a trial, though, we will never know what a jury would have thought.
If the incredibly divisive and horrible political tumult occasioned by efforts to hold Mr. Trump to account through the criminal law were to lead us to the conclusion that we should never attempt to hold former presidents responsible for violations of law while in office, then we might as well dispense with "democracy" right there. The failure here was not with "the Democrats," or with "president Biden." The failure was with the Congress, and specifically with the United States Senate. The Senate should have held a trial, after president Trump was impeached for his actions on January 6th. Since the provisions in the Constitution which are intended to hold presidents accountable were not followed, our criminal justice system was put into the difficult position of having to take up a task that it never should have had to face.
Let's give it some credit for trying, not blame it for the political tumult of which it was a victim, not a cause.
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