Jack Smith’s accountability efforts end in more leeway for Trump

In closing arguments he never delivered to a jury, Jack Smith, the former special prosecutor who investigated Donald J. Trump, insisted that the thwarted prosecution was fair and that his investigators set an example “for others to fight for justice.” .

“Although we were unable to bring the cases we charged to trial, I believe the fact that our team stood up for the rule of law is important,” wrote Mr. Smith in the final report published in the middle of the night, while much of the country was asleep.

But the culmination of his work may have actually had the opposite effect. In view of the verdicts brought against him by the courts in which Mr. Trump helped, Mr. Smith leaves the nation’s most important prosecutorial job in two years with the unintended consequence of giving Mr. Trump and every future president, more, not less, freedom from legal restrictions.

And the Ministry of Justice, whose principles Mr. Smith fiercely defended in his final hours as special prosecutor, now entering a second Trump administration with less power to prosecute a president than it has had in half a century, following a sweeping Supreme Court decision that granted the president broad immunity.

“I have a lot of respect and sympathy for Jack Smith,” said Peter Zeidenberg, a lawyer who served on the special counsel’s investigation under President George W. Bush. “His efforts were unsuccessful, but through no fault of his own. The obstacles he faced were insurmountable.”

Critical rulings by the Supreme Court and Judge Aileen M. Cannon of the Federal District Court in South Florida tied Mr. Smith’s hands, Mr. Zeidenberg said: “Unfortunately, the courts and the Department of Justice have shown themselves to be immature. the task of finding justice when the accused is this former president.”

The Supreme Court’s decision on immunity “turns on its head the whole idea that no one is above the law,” said Mr. Zeidenberg, adding that he expects no special counsel appointments in Trump’s second term.

When Mr. Smith was first appointed as a special prosecutor in November 2022, shortly after Mr. When Trump announced his re-election campaign, he seemed almost the perfect candidate.

His pedigree as a former public prosecutor for corruption and war crimes suggested he would not back down or run away under pressure. Even his background as an athlete seemed a good fit for two marathon criminal cases that never made it to the finish line. In 2023, he accused Mr. Trump for conspiring to block the results of the 2020 presidential election, and a separate indictment of Mr. Smitha accused the former president of mishandling classified documents and obstructing government efforts to recover them.

The dual indictments marked the first time a former US president had been charged with federal crimes. But Mr. Smith’s efforts backfired when they ran into powerful judges who not only ruled in Mr. Trump’s favor, but used the cases to weaken legal structures that could keep future presidents in check.

In Florida, Judge Cannon dismissed the classified documents case on the grounds that Attorney General Merrick B. Garland allegedly lacked the legal authority to appoint someone outside the Justice Department as special counsel.

That judgment, which was passed by the judge who is Mr. Trump’s unusual favoritism throughout the case, which was twice overturned by an appeals court at an earlier stage, ran counter to decades of court precedent and Justice Department practice.

Mr. Smith has appealed, but an appeals court or the Supreme Court may never decide. The incoming Trump administration is likely to drop the case, rendering the issue moot. That would leave a cloud of suspicion hanging over special counsels, forcing future attorneys general to think twice before appointing one to scrutinize the president.

More importantly, Mr. Smith’s indictment of Mr. Trump in the election case gave the Supreme Court’s six conservative justices an opportunity to articulate a new doctrine that makes presidents presumptively immune from prosecution for their official actions — and absolutely immune for their interactions with the Justice Department.

That ruling, based on no express text in the Constitution or previous precedent, greatly helped Mr. Trump by requiring Mr. Smith to sever parts of his case. It remained unclear how far such presidential power extends, and in that sense, Mr. Trump’s election victory and subsequent dismissal of the case may have spared Mr. Smith’s case an additional blow.

Even so, executive branch lawyers will now be able to interpret the ruling expansively — including the majority’s statement that presidents have the right to discuss criminal investigations and prosecutions with the Justice Department.

Robert Mintz, a former federal prosecutor now in private practice, said the long-term impact of Mr. Smith’s work was hard to see. “What is clear is that the Justice Department miscalculated the timing of the decision to appoint a special prosecutor before the election and misjudged President-elect Trump’s ability to undermine public confidence in these investigations, turning these prosecutions into political opportunities,” he said.

For Mr. Smith, it was not the first time that his aggressive approach to prosecuting powerful politicians under the law had led to rulings that weakened legal restrictions on such officials.

In 2014, as head of the department for public integrity of the Ministry of Justice, Mr. Smith oversaw the corruption prosecution of former Virginia Gov. Bob McDonnell, a Republican who, along with his wife, received more than $175,000 in loans and gifts from a businessman who wanted the state’s help promoting his nutritional supplements. The jury is Mr. McDonnell was convicted on 11 counts of criminal offenses related to corruption, and the judge sentenced him to two years in prison. But in 2016, the Supreme Court unanimously overturned his convictions.

In a decision written by Chief Justice John G. Roberts Jr., who also authored the majority opinion in the immunity case, the court condemned Mr. Smith’s team for adopting a “boundless interpretation of the federal bribery statute.”

In the future, the court said, plaintiffs in such cases must prove that there was an explicit agreement linking the gift to a specific official act such as a contract or vote, and other actions such as arranging meetings, inviting other public officials or organizing events on behalf of the donor were not counted in official actions. The ruling made it much more difficult for prosecutors to prove corruption cases against government officials, and the Supreme Court’s ruling on presidential immunity applied to the McDonnell case, drawing a direct line between the two.

After last year’s election results made it clear that Mr. Smith’s prosecutions would have to be dropped, given the Justice Department’s long-standing policy that sitting presidents cannot be prosecuted, the special counsel scrambled to release his final report.

A stormy 11-hour lawsuit over the report led the prosecutors to decide to keep half of Mr.’s document for the time being. Smith, the part dealing with the confidential documents case.

The appointment of Mr. Smith two years ago, announced by the attorney general, seemed to herald an extraordinary test of the nation’s political and legal systems. However, his resignation was announced via a note at the end of a court filing over the weekend.

Glenn Thrush contributed reporting.