New On Just Security: Refuting the Latest Baseless Attacks Against Special Counsel Jack Smith
“Another major factual revelation by Special Counsel Jack Smith, another attempt to discredit him without ever addressing the new facts,” Andrew Weissmann and Ryan Goodman write in an analysis published today on Just Security regarding the 2020 election interference/Jan. 6 case brought by Smith against former President Donald Trump.
“But this time,” Weissmann and Goodman write, “the attacks come not just from the defendant, but from lawyers who provide former President Donald Trump an undeserved veneer of credibility.”
Weissmann and Goodman discuss the recent aim of critics to attack Smith’s recent legal brief which, with court approval, was made public.
The brief addressed the Supreme Court’s recent decision requiring the court to consider the allegations in the election interference case in order to determine what proof was not subject to the Court’s new presidential immunity doctrine.
According to the Weissmann and Goodman:
“What makes the latest attacks on Smith especially rich is the contention that the special counsel has contributed ‘to the sharp decline in distrust[sic] of our justice institutions’ – when it is former President Donald Trump who has made a mockery of our justice system and inability to do what so many other countries have done successfully: try our highest political leaders. And it is the Trump enablers who hasten that ‘sharp decline’ by levying baseless accusations that undermine the bona fides of the special counsel and the Department of Justice. Launching spurious, incomplete, and misleading missives harm the very institution – and the rule of law – they claim to defend.”
Weissmann and Goodman unpack the incorrect reasoning of critics, and, specifically, last week’s New York Times essay by former Assistant Attorney General Jack Goldsmith.
Weissmann and Goodman explain that the argument of critics that Smith is violating a Justice Department “rule” prohibiting prosecutors from taking certain overt actions within 60 days of an election is “flat wrong.”
The authors explain why the so-called “60-day rule” is inapplicable in this case, including that this “rule” does not apply to cases that have already been charged, and the Special Counsel’s office has noted they did consult with the Public Integrity Section of the Justice Department, which oversees the policy and that they were in “full compliance.”
In addition, Weissmann and Goodman point out, Smith and his office “have complied with Judge [Tanya] Chutkan’s repeated admonition that the pretrial briefings, as she reminded the parties last month, must go ahead without being suspended or delayed by the campaign calendar.”
What’s more, the authors continue, “in writing and in a hearing before the judge on Sept. 5, the special counsel’s team did not propose submitting their brief before the election, but left the decision of timing completely in the hands of the court.”
Weissmann and Goodman further explain there are no facts to warrant the argument of critics that Smith and other Justice Department officials violated a Department provision that no decision, at any time, should be made with the purpose of affecting an election.
The further claim of critics that the 2020 election interference case “must now come to a halt is an easily debunked fallacy,” Weissmann and Goodman write.
Weissmann is a Professor and Distinguished Senior Fellow at NYU School of Law. He previously served as the Justice Department’s Fraud Section Chief and as General Counsel for the FBI.
Goodman is co-editor-in-chief of Just Security and a Professor at NYU School of Law.
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Read the full analysis on Just Security
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