The modern Democratic Party operates like a Mafia family. Like the Mob, Democrats have a specific organizational hierarchy. There are the grand bosses who sit atop the entire food chain, such as the Obamas and the Clintons. There are the trusted consiglieres, such as Attorney General Merrick Garland and outside super-lawyer Marc Elias. There are caporegimes, such as Governors Gavin Newsom and Kathy Hochul. Heck, there was even a years-long omerta vow of silence surrounding President Joe Biden‘s obvious physical and mental decline.
And then, as in any organized crime outfit, there are the street-level foot soldiers—the hit men. The role of the foot soldier is to dutifully execute the orders of his principals. Often, the foot soldier’s assigned tasks are less than reputable—intimidation, extortion, racketeering and, yes, knocking off those rivals who pose a viable threat to the family’s territory or prestige.
In the year 2024, so-called “special counsel” Jack Smith—yes, only so-called, as both Justice Clarence Thomas and Judge Aileen Cannon recently concluded—is the foot soldier par excellence for the Democratic Party, and the Democrat-Lawfare Complex that now serves as the party’s tip of the electoral spear.
No one should have been under any preexisting illusions that Smith was a noble lawman dedicated to upholding a neutral rule of law. Smith, after all, charged a former president of the United States with violating the Espionage Act—the controversial World War I-era statute normally reserved for such extreme cases as those of Julius and Ethel Rosenberg, Julian Assange, and Edward Snowden. After this week, however, the jig is truly up: Smith’s naked politicking and electioneering has been exposed for all to see.
But let’s first take a step back. Earlier this summer, Smith was rebuked by the courts in at least three distinct ways.
First, in Fischer v. United States, a 6-3 Supreme Court majority held that a provision of the 2002 Sarbanes-Oxley Act pertaining to obstructing an “official proceeding,” found at 18 U.S.C. § 1512, could not be used to charge participants in the Jan. 6 jamboree at the U.S. Capitol. Rather, that provision of Sarbox had to do with corporate fraud and impairment of physical documents—not with such constitutional events as the formal counting of Electoral College votes in Congress.
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Second, in Trump v. United States, a slightly altered 6-3 Supreme Court composition emphatically rejected Smith’s argument that a former president enjoys no immunity from criminal prosecution following his presidency. Rather, the court ruled, the president enjoys absolute immunity from prosecution for all plenary constitutional acts taken while in office, and a rebuttable presumption of immunity from prosecution for all “official” acts taken more broadly.
Third, Justice Thomas’ concurring opinion in Trump v. United States suggested, and Judge Cannon of the U.S. District Court for the Southern District of Florida ruled, that Smith is not a legitimate U.S. Department of Justice special counsel because Congress has not properly established his office “by law.” Judge Cannon’s ruling thus tossed Smith’s Espionage Act case against former President Donald Trump, entailing a much-publicized classified document dispute at Mar-a-Lago. Smith is now appealing Cannon’s dismissal.
The combined effect of these rapid-fire developments should have sent an unmistakable message to Smith: Abort your mission. This is doubly true given the impending November election, for which a certain criminal defendant will appear at the very top of the ballot. After all, the DOJ’s own internal Justice Manual stipulates that “federal prosecutors … may never make a decision regarding an investigation or prosecution, or select the timing of investigative steps or criminal charges, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”
Come again?
Any reasonable prosecutor—or so-called “prosecutor”—would have conceded defeat and dropped the lawfare madness. Instead, in his superseding indictment filed this week in Washington, D.C., Smith doubled down in every possible way.
Smith only made cosmetic changes to his original charging document, removing certain factual allegations that clearly involve a president’s plenary constitutional conduct but retaining other alleged acts that still fall under the broader scope of “official” presidential conduct. Astonishingly, Smith left in both his counts against Trump that invoke the very Sarbox provision the Supreme Court just held in Fischer cannot be invoked for Jan. 6-related prosecutions—including Smith’s anti-Trump case in Washington. And perhaps most offensive, the dimwitted Smith simply hasn’t gotten the memo: Like a spurned lover, he still thinks he’s a real “special counsel.” But he isn’t.
Speaking as a lawyer myself: Smith is not very good at this whole law thing. He really ought to consider another profession. I hear the U.S. Secret Service is hiring.
The American people can definitively send Smith—and the rest of the Democrat-Lawfare Complex—packing this November.
Josh Hammer is Newsweek senior editor-at-large, host of “The Josh Hammer Show” and “America on Trial with Josh Hammer,” a syndicated columnist, senior counsel for the Article III Project, and a research fellow with the Edmund Burke Foundation. Subscribe here for “The Josh Hammer Report,” a Newsweek newsletter, as well as Josh Hammer’s Subtext text message group. X: @josh_hammer.