Jack Smith criticizes Supreme Court immunity decision
Jack Smith criticizes Supreme Court immunity decision in first remarks since Trump’s return
Former special counsel Jack Smith sharply criticized the Supreme Court‘s landmark decision that found that then former-President Donald Trump and other presidents are immune from criminal prosecution for official acts taken while in office, warning that the ruling could make it nearly impossible to hold powerful officials accountable.
In his first public remarks since Trump’s return to the White House, Smith said the justices’ July 2024 majority opinion in Trump v. United States “strongly weighted the other considerations” presented in the case rather than, in his view, the rule of law. Smith said the resulting ruling was “tantamount to saying you can never prosecute powerful, high officials.” The high court ultimately found that former presidents are not immune from prosecution for “unofficial acts” taken while in office but have absolute immunity from prosecution for “official acts.”
“While I didn’t agree with it, we followed it,” Smith said during an Oct. 8 discussion at University College London with former federal prosecutor Andrew Weissmann. “The problem is not prosecuting high officials who did something wrong when you do it according to the processes of law. It’s the retaliation. That’s the problem, and that’s the thing that we should be preventing.”
The interview, made public Tuesday, was Smith’s first public appearance since his historic prosecutions of Trump were derailed by the president’s reelection last year. The interview also comes as Smith faces renewed scrutiny from Republicans in Congress. The video was released on the same day that House Judiciary Committee Chairman Jim Jordan (R-OH) demanded Smith testify about what he called “politically motivated prosecutions” after revelations that the FBI, under Smith’s direction, obtained the phone records of nine GOP lawmakers in 2023.
Notably, Smith’s reemergence into the public eye appears to be part of a multifaceted effort to push back against the Trump administration’s handling of Justice Department affairs. One day after the interview was published, Smith appeared in a montage video featuring other former DOJ prosecutors represented by the group Justice Connection, which has been described as a “political hit squad” by DOJ staff in the current administration.
During the interview, Smith defended his investigations into Trump’s handling of classified documents and alleged efforts to overturn the 2020 election, calling it “absolutely ludicrous” to suggest political motives influenced the cases.
“The idea that politics would play a role in big cases like this … it’s absolutely ludicrous,” he said. “These are team players who don’t want to do anything but good in the world.”
Smith said there was “tons of evidence” showing Trump willfully retained classified materials and obstructed recovery efforts, while saying the same level of proof did not exist in special counsel Robert Hur’s investigation of then-President Joe Biden‘s handling of classified records. Hur declined to prosecute Biden over concerns that a jury would find the former president’s memory too addled to reach a guilty verdict.
While defending his record, Smith accused the DOJ, led by Attorney General Pam Bondi, of “throwing out the rules” to reach desired outcomes. He pointed to the recent indictment of former FBI Director James Comey and the dismissal of charges against New York City Mayor Eric Adams as examples of political interference.
“Nothing like what we see now has ever gone on,” Smith said. “You can’t say, ‘I want this outcome, let me throw the rules out.’”
Smith said career prosecutors initially declined to charge Comey before a recent Trump-appointed U.S. attorney, Lindsey Halligan, secured an indictment days before the statute of limitations expired.
“That just reeks of lack of process,” he said.
Smith also warned that political pressure is driving career prosecutors out of the DOJ.
“They’re being asked to do things they think are wrong,” he said. “When they’re told, ‘You’ve got to get this outcome no matter what,’ that’s so contrary to how we were all raised as prosecutors.”
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Smith’s criticism comes more than a year after a separate ruling by U.S. District Judge Aileen Cannon, a Trump appointee, found that he was unlawfully appointed as special counsel, a decision last summer that marked the beginning of the downfall of his Trump prosecutions. Cannon found that then-Attorney General Merrick Garland lacked constitutional authority to create the position without Senate confirmation, a sweeping decision that vacated the classified documents case against Trump in Florida.
Following the Supreme Court’s decision in Trump, Smith’s indictment in Washington, D.C., fell apart after Trump won reelection and never made it to a jury trial.
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