Here was the August 3, 2023 headline atop the New York Times' editorial that day: "A PRESIDENT ACCUSED OF BETRAYING HIS COUNTRY." Yes, it was all caps. And, as an aside, I think it is rather ironic/comical that the Times feels they need to explain that the Editorial Board is "A group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values." A little defensive, are they?
The Times tells us that the prosecutor, Jack Smith, was "a veteran prosecutor on the International Criminal Court who has prosecuted far more brutal and popular leaders than Mr. Trump..." Brutal? Are there allegations that Trump had people tortured or killed? But let's talk about about Jack Smith for a minute.
As head of the DOJ's Public Integrity Section, he pursued, unsuccessfully, a case against John Edwards. Recall that Edwards was the former Senator who ran for president in 2008. Thereafter, Smith prosecuted Edwards, alleging violations of campaign finance laws. What exactly? Using campaign funds to hide his extra-marital affair. Sound familiar?
Smith also prosecuted former Virginia Governor Bob McDonnell for violations of the federal bribery statute. In that case, Smith was successful at the trial level. But the US Supreme Court felt differently about this prosecution, and reversed the conviction. And they did so unanimously, in an 8 to 0 vote. Yes, it can be said that McDonnell should not have accepted certain gifts, especially given his prior interactions with some of the donors.
But, as the Court said: "Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time. The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns - whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm."
The Court explained: "The Government's position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to a ballgame. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse."
And who can forget the IRS and Lois Lerner allegedly targeting conservative 501(c)(3) groups, auditing them for improper political participation, and seeking to end their tax exempt status. Many will recall that Lerner later apologized for targeting Tea Party groups. But Jack Smith saw things differently. Said Congressman Jim Jordan (R-OH): "Jack Smith was looking for ways to prosecute the innocent Americans that Lois Lerner targeted during the IRS scandal."
Don't get me wrong. I have no problems with a zealous prosecutor targeting organized crime, terrorists and the like. But I have a serious concern with a prosecutor like Smith, who seems to look for ways to extend the law in a manner that should make all of us wary. As one of the attorneys involved in the Watergate scandal famously said: "If the government wants to get you, they can find a way to get you," or words to that effect.
But is that what we should want in prosecutors? Seeking to extend the law to reach as many Americans as possible, in order to send them to prison. Do we even want that with regards to politicians who, most would agree, are notorious for, to be kind, stretching the truth. As Kimberly Strassel wrote in her Op-Ed, regarding the Trump prosecution: "Dishonest politicians who act on dubious legal claims? There aren't enough prisons to hold them all."
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