‘No white knight’: Jack Smith’s document rife with mistrials, overturned convictions, judicial rebukes

Special counsel Jack Smith, who has introduced federal costs towards former President Trump, is an “overzealous” prosecutor who depends on ethically doubtful ways together with media leaks and engaging witnesses to win a conviction, say those that have been caught in his snare.

Mr. Smith headed the Justice Department’s Public Integrity Section through the Obama administration from 2010 to 2015, when he led a staff of 30 prosecutors pursuing public corruption circumstances towards main political figures.

During that point, Mr. Smith and his staff — a few of whom are engaged on the Trump case — adopted a well-known playbook. It’s a script that earned him a fame as a hard-driving, intense prosecutor, but additionally a string of mistrials, overturned convictions and sharp rebukes from federal judges, together with Supreme Court Chief Justice John G. Roberts Jr.

“These are no white knights. They are very dangerous and will use any tactics to win at all costs,” stated former U.S. Rep. Rick Renzi, an Arizona Republican who was convicted by Mr. Smith’s staff in 2013 on corruption and fraud costs.

Mr. Renzi has maintained his innocence however served practically two years in jail earlier than he was pardoned in 2021 by Mr. Trump. He credit a 190-page white paper submitted to the Justice Department by his authorized staff alleging “repeated, concealed and corrosive” misconduct by prosecutors as the rationale he secured a pardon.

He stated he’s “shocked” by the similarities between his case and the prosecution of Mr. Trump.

Mr. Trump was charged with 37 felony counts, together with the willful retention of nationwide protection info, obstruction and false statements. Walt Nauta, an aide to the previous president, has additionally been indicted within the investigation.

A evaluation of Mr. Smith’s most outstanding circumstances discovered that his staff adopted the identical playbook within the Trump case as in different political prosecutions. That playbook has resulted in a spotty document of success in high-stakes circumstances focusing on each Republicans and Democrats:

• Mr. Smith’s conviction towards former Virginia Gov. Bob McDonnell, a Republican accused of accepting funds and presents in violation of federal public corruption legal guidelines, was overturned by the Supreme Court.

• The case towards former North Carolina Sen. John Edwards, a Democratic presidential candidate accused of illegally utilizing campaigning money to hide his mistress and love little one, ended with a hung jury and mistrial.

• The prosecution of Sen. Bob Menendez, a New Jersey Democrat accused of taking bribes, collapsed in a mistrial.

• The conviction of New York Assembly Speaker Sheldon Silver, a Democrat, on federal corruption costs was overturned by an appeals court docket. He was convicted throughout a second trial, however an appeals court docket threw out three of the six responsible verdicts. He died final 12 months.

“Government lawyers have a higher duty to the truth and cause of justice and that’s where some of these government prosecutors, like Mr. Smith, have fallen short,” Mr. McDonnell stated. “They are smart and well-credentialed, but they don’t seem to be exercising good judgment when it comes to this point.”

Mr. Menendez declined to remark.

A spokesman for Mr. Smith declined to remark for this story.

Attorney General Merrick Garland has staunchly defended Mr. Smith’s standing as a “veteran career prosecutor.”

“As I said when I appointed Mr. Smith, I did so because it underscores the Justice Department’s commitment to both independence and accountability,” Mr. Garland stated final month. “He has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law.”

Attorney-client privilege

Several patterns emerge throughout most of Mr. Smith’s high-profile prosecutions. The first is a questionable piercing of the attorney-client privilege.

In the Trump case, Mr. Smith’s staff bought across the privilege by convincing a federal choose to put aside the protections below the crime-fraud exception. The exception permits attorneys to interrupt attorney-client privilege in the event that they consider the authorized recommendation was utilized in furthering against the law.

The ruling allowed prosecutors to entry notes taken by Trump legal professional Evan Corcoran, which shaped the idea for a lot of the allegations within the Trump case.

Mr. Smith took an identical tack within the Renzi case, submitting as proof recordings of the previous lawmaker’s personal conversations along with his attorneys.

U.S. District Judge David Bury concluded that prosecutors unlawfully recorded the calls and ordered them to be suppressed, together with the truth that the calls had been wiretapped.

“The government’s conduct, in its totality, warrants a more significant sanction than just suppressing the privileged evidence. The court suppresses the wiretap,” Judge Bury stated, including that the federal government “acted unreasonably” to “exceed its authority.”

Mr. Smith was extra profitable within the McDonnell case when the U.S. Court of Appeals for the Fourth Circuit upheld that emails despatched to the previous governor from a authorities legal professional weren’t protected by the attorney-client privilege. The court docket concluded Mr. McDonnell’s authorized staff didn’t show the emails constituted authorized recommendation.

Mr. McDonnell stated he’s nonetheless “stunned and incredibly disappointed” that confidential discussions he had along with his legal professional had been disclosed to a grand jury.

Media leaks

Another hallmark of a Smith prosecution is leaks to the information media, with a number of high-profile circumstances being punctuated by information reviews revealing proof favorable to the prosecution.

Mr. McDonnell stated the case towards him was plagued by a gentle stream of leaks, starting with a report of the investigation showing in a newspaper.

“There is no question the initial story came from the government leaking things to The Washington Post,” he stated. “There was a grand jury impaneled and it was pretty clear that grand jury information was being leaked to The Washington Post, which is a separate violation of the law.”

Mr. Renzi’s expertise was considerably comparable. Ahead of the 2006 midterms by which his seat was hotly contested, information of his corruption investigation appeared in native and nationwide media with a few of the tales citing Justice Department officers.

The leaks had been so pervasive that Justice Department officers, together with then-FBI Director Robert Mueller, issued a memorandum with a “stern message” about prosecutors’ obligation to protect the confidentiality of investigations.

In the Menendez case, his authorized staff stated prosecutors engaged in a deliberate sample of media leaks that broken his credibility with the general public to extend the probabilities of indictment, saying their actions amounted to “serious misconduct.”

Last month, a number of shops printed a leaked audio recording of a 2021 personal assembly between Mr. Trump and staffers by which the previous president discusses holding secret authorities paperwork he didn’t declassify.

“The media leaks are a three-pronged attack,” Mr. Renzi stated. “It taints the jury pool, suppresses voter turnout and pressures the judge to rule in their favor.”

Witness enticement

A lawyer for Mr. Nauta alleges that whereas attempting to safe his cooperation, a prosecutor on Mr. Smith’s staff prompt that the protection lawyer’s utility for a judgeship can be thought-about extra favorably if he and his shopper turned towards Mr. Trump. The lawyer, Stanley Woodward, has fled a criticism alleging prosecutorial misconduct with the chief U.S. choose in Washington.

In the McDonnell case, prosecutors filed costs towards his spouse and promised to drop the fees if she would testify towards him.

The authorities has additionally promised to pay $25,000 to the cooperating witness within the Renzi case. However, prosecutors invoked his testimony greater than 90 occasions throughout closing arguments and asserted that the witness, Phillip Aries, had not acquired “one thin dime” for his cooperation.

Weeks earlier than Mr. Renzi’s Supreme Court petition, Mr. Aries emailed a prosecutor searching for his $25,000 cost, which he stated can be like “winning the lottery.”

While the cost pledge was made by the FBI, Mr. Renzi has contended that Mr. Smith’s staff was conscious of the promise and hid it from his authorized staff.

Pushing limits of the legislation

Another hallmark seems to be a broad interpretation of the legislation, leading to a number of rebukes or failed prosecutions in Mr. Smith’s political circumstances.

Mr. Edwards, the 2004 Democratic vice presidential nominee, was charged with six counts, together with three counts of violating the Federal Election Campaign Act.

The case ended embarrassingly for the Justice Department, with the jury deadlocking on 5 of the six felony counts and acquitting him on the final one.

The National Review, a conservative information journal, ripped the prosecution forward of the trial, saying the federal government’s claims that efforts to hide an extramarital affair and illegitimate little one amounted to election fraud had been doubtful.

In the Menendez case, 10 out of the 12 jurors within the case stated prosecutors stretched the definition of the bribery and corruption statute and didn’t make the case that the presents he acquired violated federal legislation.

However, probably the most beautiful condemnation got here within the McDonnell case after his conviction was overturned by the Supreme Court.