Jack Smith Is A Model For All Anti-Trump Forces. By Brian Beutler

BRIAN BEUTLER

DEC 12, 2023

Read time: 5 minutes

Jack Smith Is A Model For All Anti-Trump Forces

Democrats should emulate his willingness to force confrontation and expose duplicity

(Photo by Drew Angerer/Getty Images)

I’m going to make an exception to my person-of-the-year agnosticism because Taylor Swift makes music for people that pronounce the Ls in tortilla one person in American civic life currently stands out among other powerful public servants in actually trying to bring Donald Trump to justice. 

On Monday, Special Counsel Jack Smith jolted the news cycle by doing an end around the lengthy appeals process and petitioning the Supreme Court to rapidly adjudicate the question of “presidential immunity”—Trump’s last, best, but still frivolous hope to delay his criminal January 6 trial until after the election.

wrote a good précis on why Trump’s arguments are weak way back when he set this all in motion. In essence, he claims presidents can’t be held criminally liable for their official acts, even after they’ve left office (a bonkers idea, but at least unsettled as a matter of constitutional law) and that his efforts to overturn the 2020 election were undertaken as official acts of the presidency, not as a desperate candidate trying to turn defeat into victory.

Smith’s impatient-but-considered move to subvert Trump’s delay tactics struck me as his way of saying “enough bullshit,” and as a direct challenge to the Supreme Court itself: Will you uphold the public’s right to a speedy resolution of this case? Or will you do Trump a big political and legal favor, knowing his objective is to contest the election free from the stain of a criminal conviction, then vitiate this case as president if he wins? The Court, so pressed, swiftly granted Smith’s initial request, and will decide whether to expedite a ruling on presidential immunity in short order. 

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I know an institution like Time would be loath to honor a beleaguered public servant if doing so would betray even a hint of partisanship. Plus, Taylor Swift did a bunch of concerts and whatnot. But I have a harder time explaining why other powerful people with an interest in stopping Trump or holding him accountable don’t act more like Jack Smith. 

For all that’s at stake in 2024, Democrats seem completely frozen. They are buffeted by brutal polls, but have little power to legislate in divided government and few ideas about how to change public opinion outside the realm of policymaking. They know that Biden polls dramatically worse than many other high-stature Democrats but have no mechanism to replace him with one of them, and in any case it’s too late for any of them to challenge him. Democrats seem to recognize that abortion is the one issue the public would still entrust to them—and it is an incredibly salient issue—but they seem oddly uninterested in capitalizing on the ghoulish way powerful men are torturing pregnant women in ban states—except maybe for fundraising purposes. (Note to White House staff: Consider extending Kate Cox an invitation to the State of the Union address.)

And as Jack Smith keeps plugging away, bound by rules and laws that significantly limit what and how he can communicate with the public, Democrats have largely abandoned him to absorb right-wing defamation, incitement, and jury tampering on his own. 

Trump asserts on a daily basis that Smith and other prosecutors—even state-level ones—are simply the cat’s paw for Joe Biden, and that Biden is orchestrating all of it as a form of political interference in the election. Democratic leaders, including Biden, simply refuse to respond to this casual deception, leaving Trump’s lies uncontested. Most people naturally understand that Trump is lying, of course, while many others either believe him or are sufficiently in his thrall that they don’t care. But elections turn on margins, and more than enough people seem open to Trump’s false claims. Even many Democratic voters now suspect that Trump’s trials are at least partly motivated by politics.

There’s a tight analogy (and some direct overlap) between Trump’s incessant, throw-everything-at-the-wall efforts to spoil, delay, or terminate his prosecutions and Republicans’ bottomless appetite for ruthless partisan experimentation. Their specific tactics are not admirable. Mounting a baseless revenge impeachment to fan mass propaganda isn’t admirable. Buying up billions of dollars in media infrastructure to pollute the discourse with lies and agitprop isn’t admirable. Some of their tactics rise to the level of national sabotage and providing aid or comfort to insurrectionists. Also not admirable. 

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But their willingness to press an advantage against their opponents whenever one arises is admirable. It’s a quality Democrats seem to recognize as effective whenever it causes them pain, but not one they have the capacity to emulate. 

When was the last time you recall a Democratic leader responding, like Smith or like Republicans, to a new development with a confident power play? Or seizing an opportunity to test and expose the depths of the institutional right’s bad faith before God and everyone? 

Biden can’t responsibly comment as president on the merits of Trump’s federal prosecutions, or arguably any of his legal cases. But he could and should comment on his own involvement in those cases (none) and on Trump’s general character (crook) quite frequently. It would be so easy to say “he has legal trouble because he’s a crook, we’ve had no part in it.” I know Democrats think running interference in the informational realm doesn’t matter. But it does.

(Before anyone leaps through the air to defend Biden and Democrats for being AWOL, consider that you’re arguing Biden’s right not to call his rival for the presidency, who wants to end constitutional government in the U.S., a crook.)

The charitable case for all this is that Democrats want Republicans to nominate Trump as frictionlessly as possible, because they think he’s beatable, and will join the information wars next year in an earnest and considered way. But to believe that, we sort of have to assume they’ve missed the many polls suggesting Trump is currently favored to win the general election. We’d also have to assume they don’t notice Trump has 60 percent support in the Republican primary, which makes it impossible to imagine they could do anything to stop him from winning the nomination. They are in the general election now, already, whether they expected to be or not.

A more economical explanation is that they know they’ll be running against Trump but have no idea how to mix it up with him in the political arena this early, when they’re on the hind foot. It may be starting to dawn on them that politics in 2023 is much more about information warfare than studies in policy contrasts, but have built no readiness to wage the former. 

And when all you have is a hammer…