Special Counsel Jack Smith is again in the news over troubling details about his warrant served on Twitter. The warrant forced Twitter to produce account information of platform users who liked, favorited, retweeted, or interacted with Trump’s posts in the many months leading up to the events of Jan. 6, 2021. Wait… what?
We were told Smith had simply subpoenaed Trump’s Twitter account records with no notice to Trump or his lawyers. But if you clicked a button after reading a tweet from the then-sitting president of the United States, you could now be on the DOJ’s no-no list courtesy of Jack Smith. He burned your constitutionally protected privacy rights to “get Trump.” You were inconsequential collateral damage.
American Democrats have responded with glee, so let me break the news. If you responded to a Trump tweet by calling him some version of an orange farm animal, you are also on Smith’s list.
For good measure, the D.C. judge presiding over related matters fined Twitter more than $300,000 for not producing your personal account information fast enough. This smacks of Trump being “homered,” or raked over the coals in the DOJ’s favorite anti-Trump stomping grounds of NYC and D.C. They would drag him to Seattle or San Francisco if they could. What about the Sunshine State, though?
Trump has long claimed the Democrat establishment is after all of us, not just him. The shortcuts and incendiary tactics of Smith and his team — the win-at-all-cost mentality — lend credence to that position and are destroying any confidence citizens have in our judicial system. In fact, most stories about Trump’s federal legal issues conspicuously list the political party of the presiding judge and name the president who appointed him or her to the bench. That way, for the readers who want to see Trump in the stockade, the legacy media strongly insinuate the Obama or Biden appointee will deliver.
How will Smith’s in-your-face, rule-skirting play out in Trump’s Mar-a-Lago classified documents case? A federal district judge has already smacked Smith down for abusing the grand jury process by keeping open a secret, parallel D.C. grand jury to investigate Trump for alleged document mishandling even after Trump had already been indicted by a Miami grand jury. Federal rules require prosecutors to impanel grand juries where the alleged crime occurred. Either Smith’s entire team forgot this rule, or they decided to trample more constitutional rights by running a friendly shadow jury to find more evidence and to bring new charges in Miami. Joseph McCarthy much?
This is blatant forum shopping, grand jury abuse, and arguably sanctionable misconduct. But if you want to get Trump no matter what, this scorched-earth path was always on the menu. Provided the judge demonstrates regular restraint and the same sense of fairness she would apply to any other defendant; her orders will slow the government’s roll and allow the defendant to prepare to rebut these wild charges. Her job is to maintain order and give the whole case to the jury.
What’s more, Smith is driving toward the earliest trial date, seeking to deprive the Trump defense of its opportunity to adequately prepare. After considerable foot-stomping, Smith gave Trump access to more than 1 million pages to read at secure locations and demanded that Trump’s lawyers review them lightning quick. For perspective, a standard bundle of copy paper is 500 pages. One million pages is 2,000 of those stacks with words all over them.
The judge has questioned whether Smith’s team recognizes the tall order for Trump’s lawyers to review this volume of data — that the prosecutors have possessed for years — just so Smith can secure a rocket docket that will allow the most interference with the next presidential election.
Despite Smith’s best efforts, as long as the court keeps the playing field level, there will not be a mid-year trial, and the Florida jury will eventually receive all the evidence it needs to make an informed decision.
The feds contend that Trump wrongly took documents from the White House, failed to keep them secure, and refused to deliver them to the presidential archivist when asked. Soft treatment of other marquee suspects who committed these same acts militates against a Trump conviction.
Hillary Clinton was caught misusing an unauthorized private email server to store classified communications. Once the former secretary was under federal subpoena, she and her team used an app to wipe data and physically destroyed devices to cover her tracks. If any ranking politician were likely to be prosecuted for a document custody crime, it was she. Yet the DOJ gave Clinton a complete pass. FBI Director James Comey announced that Clinton had done wrong, and since she did not exhibit clear intention to expose the classified information to our enemies, no reasonable prosecutor would charge her with any crime. She likely leaked critical data but lacked the motive to harm America. Remember those enunciated standards: clear intention and no reasonable prosecutor.
Similarly, for decades, Sen. and VP Biden chronically mishandled classified information. Classified, secret, and other sensitive materials were found at his homes, offices, and other locations. The volume of information Biden randomly scattered dwarfs that which was held by Trump and destroyed by Clinton. Much of the information had once been housed at secure government locations Biden could visit but from which he should have left empty-handed. Yet Biden had papers — a lot of them.
We learned last week that the DOJ will not pursue any charges against President Biden. That is consistent with the freebie given to Clinton. So how can they charge Trump? Besides him being the only Republican in this threesome, what’s the difference?
Ultimately, to convict Trump, every juror must be comfortable hammering him for doing the same things these uncharged Democrat politicians have done in public view. If defense lawyers create doubt of guilt in the mind of one juror, Trump will be acquitted. The stakes are high, and the prosecution’s credibility is front and center.
We will never know what the FBI would have found had it served warrants or simply appeared at these Clinton and Biden-controlled locations. And that is the point. The FBI leaked photos of carefully arranged Trump papers. They were more tight-lipped about the other two. This is the epitome of disparate treatment under the law
These comparisons matter, since one of Trump’s defenses is selective prosecution. He, Clinton, and Biden all stored classified documents at their homes. Only Trump, the one with legal standing to declassify, has been raided and charged. Legal analysts say Trump won’t meet the high burden of establishing this defense because he cannot prove that he was treated differently than others because of his sex, race, or political party. The last one is the key and on the facts and law is the only material difference among them. Trump is the lone Republican.
The defense will not be permitted to simply hurl unsupported allegations at the absent Clinton and Biden. Trump will not be allowed to argue that Biden sprinkled documents around like tokens for his son to pick up and sell to enemies while the Biden family was actively receiving millions from foreign powers for otherwise unexplained goods or services.
To make a convincing side-by-side comparison, he needs and is arguably entitled to the government’s files on Clinton and Biden’s “document cases” to draw tangible similarities and bolster his defense. The judge will decide, upon the defense’s request, which classified records Trump may show the jury and whether there are any other categories of documents to which Trump is entitled. Jurors will then decide if these cases are indeed vastly and categorically different or if Trump is being treated poorly for not being a protected Democrat.
For criminal charges that require intent, the defendant’s state of mind is crucial. Comey said so. Remember, he explained that Clinton lacked intent to cause harm by keeping an email server in a Colorado bathroom. Biden is being characterized as careless, at worst, yet no one will tell us how many documents he had and which were stamped “classified” when he took them.
Proof of scienter is routinely offered on a broad pallet, so a jury will understand what the defendant was thinking at key moments. Did Trump know what he was doing was illegal, and did he intend to cause harm? The DOJ opened that door to evidence on both questions when it charged Trump with intent crimes. According to the feds, Trump even asked his team whether he could just destroy the documents at Mar-a-Lago like Clinton did. If it was not illegal for her to destroy classified records, why would it be for him? That was apparently his state of mind.
If Trump can convince the court that he is entitled to make a direct comparison to disparate recent treatment of the Democrat mishandlers, he should receive some or all of these investigative files. Much of the pubic believes that the alleged investigations into Clinton and Biden were make-believe shams. If true, that would further support Trump’s defense that he is being singled out despite following the rules the DOJ applied first to Clinton, then to Biden. In his mind, at all relevant times, he was doing what they did, which must have been legal since they were not charged. If the jury thinks that is reasonable, they will acquit him.
On the other hand, Smith’s team won’t likely convince anyone that Clinton was let off because she is inherently cooperative. People remember Benghazi, the Clinton Foundation, and Bleach-Bit. Do 100 percent of people in the Florida jury pool believe Trump’s refusal to hand documents to a glorified bureaucrat librarian is an unprecedented national security atrocity comparatively? Not likely. Again, it only takes one person to conclude that this doesn’t smell right.
Ultimately, it is important for every American to understand the rules affecting his or her liberty and for those rules to be applied evenly. We gauge our conduct based on expected consequences. If half the country’s leaders possess absolute immunity, while their prosecutors slash and burn their counterparts and anyone in the way, that failure of the justice system is irreparable.
In the final analysis, this case is a loser for Smith. No one goes from hero to zero faster than a person the left no longer needs. If he rallies all the resources for the federal government to nail Trump, the result will be seen by at least half the country as a targeted hatchet job intended to clear an electoral path for an inept lifelong politician. If Trump is acquitted, Smith’s will resemble the team that failed to convict O.J.
Either way, we the people are losing our rights under the current administration, all so they can get at the one man who most threatens their cushy deals and unfettered power.
Thomas Crist is a husband, father, lawyer, and political conservative who loves his country and despises all myopic hypocrisy regardless of its source.
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