Why Jack Smith Must Go Farther

By David Corn  June 24, 2023

Special counsel Jack Smith speaking to reporters in Washington on June 9, 2023. Jose Luis Magana/AP

As serious as is the federal 37-count felony indictment of Donald Trump for his alleged pilfering of classified documents containing national security secrets, this historic action still has a bit of the feel of busting Al Capone for tax evasion. After all, Trump attacked the very foundation of American democracy, fraudulently declaring the 2020 election was rigged, mounting assorted schemes to overturn the legitimate results, and, finally, inciting a violent attack on the US Capitol in a craven attempt to retain power. All of that is far more consequential—and far more dangerous—than holding several dozen documents in a bathroom, albeit one with a chandelier.

This is not to challenge the gravity of the charges leveled against Trump by special counsel Jack Smith nor to suggest this case ought not to have been brought. It is important that justice be applied to a former president as it would any of us regular folk. Look at Kendra Kingsbury, the former FBI intelligence analyst who this week was sentenced to nearly four years in prison for keeping classified documents in her Dodge City, Kansas, home. Her case bears a stark similarity to United States of America vs. Donald J. Trump. Trump should be treated no different.

Yet this indictment does not address Trump’s greatest transgressions. This is why it is crucial for Smith, who is also investigating the Trump-driven attempts to overturn the election, to do all that is reasonable and within his authority to develop a case on that front—which he may well be doing. Perhaps between the time I write these words and they hit your inbox, we will learn something about such an effort. This is an urgent task, for it’s vital that the American system defend itself, first by signaling that such assaults cannot and will not be accepted, and then by creating powerful and visible disincentives for anyone who would attempt this sort of skullduggery in the future.

It may be that building a case against Trump for attempting a coup and sparking an insurrectionist coup is just too difficult. Mob bosses are famously slippery defendants. They give orders in veiled language. (Hey, you know that thing you gotta do? Well, you gotta do it.) When Michael Cohen, Trump’s onetime personal lawyer and fixer, testified before Congress in 2019, he spelled it out: “He doesn’t give you questions, he doesn’t give you orders. He speaks in a code, and I understand the code because I’ve been around him for a decade.” It’s tough to nail someone like that. But convicting Trump of having committed crimes against the Constitution is not the only way to send a message.

A mob boss needs lieutenants. Targeting them can be an effective way to break up a criminal enterprise and to show others the risks they will face should they engage in criminal activity. The Justice Department’s prosecution of more than 1,000 January 6 rioters has undoubtedly prompted some Trumpers to think twice before rushing to the barricades once more for Trump. In fact, as occasions have arisen when Trump extremists might have gathered to demonstrate support for Dear Leader, they were warned by fellow Trumpers to forego the opportunity out of concern it could be a trap orchestrated by the Deep State to round up Trump loyalists. That has been one good outcome of these prosecutions.

If Smith can’t land the big whale, he ought to go after the medium-sized fish—but who? It may be presumptuous of me to nominate candidates, but there clearly is one person who deserves scrutiny in this regard: Jeffrey Clark.

Clark, you might recall, was the senior Justice Department official in charge of the environmental and civil divisions. Within the department, he championed Trump’s Big Lie and the assorted conspiracy theories about the 2020 election, and he schemed to have the DOJ falsely proclaim that the official vote tallies fraudulent and instruct Georgia to toss out its results. His efforts were opposed by acting Attorney General Jeff Rosen (who replaced Bill Barr in the final weeks of the Trump presidency) and acting Deputy Attorney General Richard Donoghue. But they were welcomed by Trump, who tried to replace Rosen with Clark to advance this plot. Trump only abandoned the plan when, during a dramatic Oval Office meeting, he was informed that the entire Justice Department leadership team would resign if he pulled such a stunt.

The Trump-Clark conspiracy to misuse the Justice Department—which was assisted by several House Republicans—was well-detailed in a Senate Judiciary Committee report released in October 2021. At that time, Sen. Dick Durbin (D-Ill.), the committee chair, noted that the report showed, “America was only a half-step away from a full-blown constitutional crisis.” The report fingered Clark as a key player in this troubling caper. Legal experts have noted that Clark’s attempt to pervert the operations of the Justice Department might have violated numerous laws,  and the Judiciary Committee requested that the DC Bar open an investigation to determine if Clark merited disciplinary action. (A disciplinary procedure against Clark was initiated and is currently under way.)

Why should we pick on Clark? First, he was a main conspirator in Trump’s attempted coup. Moreover, he does not seem to have learned the appropriate lessons from that experience. These days, Clark is back in the news for leading a right-wing crusade that promotes the notion that the Justice Department should not operate independently of the president. In other words, the chief executive should be able to direct prosecutions and derail those he dislikes. This would reverse the post-Watergate rules that established a degree of distance between the White House and the DOJ, particularly its investigative and prosecutorial powers.

As the New York Times put it:

Like other conservatives, Mr. Clark adheres to the so-called unitary executive theory, which holds that the president of the United States has the power to directly control the entire federal bureaucracy and Congress cannot fracture that control by giving some officials independent decision-making authority.

Imagine if Trump had possessed such power following the 2020 election. He and Clark might have been able to succeed with their anti-constitutional coup.

And here’s a frightening thought: should Trump return to the White House, Clark is likely to be in line for a top Justice Department position, perhaps attorney general. A paper he recently published denouncing DOJ independence could well become the blueprint for Trump’s especially Trumpy Justice Department.

There have been signs that Smith’s probe, which includes investigating the GOP scheme to use fake electors to block the certification of Joe Biden’s victory, has focused on Clark. A year ago, federal investigators searched his home. But whatever is occurring with this inquiry, it hasn’t prompted Clark to lay low and STFU. He’s banging the drum for more presidential power and auditioning for a top post in a second Trump administration.

Smith is a diligent and gutsy prosecutor. Maybe he will drop the hammer on Clark or others. (And we’re waiting to see if Fulton County district attorney Fani Willis this summer will indict Trump and other schemers for crimes related to their machinations to reverse the vote in Georgia.) Certainly, any indictment of Trump or his handmaids for their Big Lie wrongdoing will be dismissed by MAGA-land, Republicans, and the conservative media as yet another unfair anti-Trump Deep State conspiracy and more “weaponization of the government.” But for the portion of the United States that is sane and rational—which is a majority—a successful prosecution will be an important declaration: You don’t get to attempt a coup and go unpunished. That seems simple and straightforward. But it’s a message that has yet to be delivered.

Got anything to say about this item—or anything else? Email me at ourland@motherjones.com.

Dumbass Comment of the Week

This was one of those weeks where the judges were exhausted by Wednesday. The week began with an unsurprising rash of idiocy about Juneteenth. A holiday tied to overcoming the racial sins of the United States is bound to drive some right-wingers nuts. They did not disappoint. Charlie Kirk, the head of Turning Point USA and king of the Trump youth movement, gave us a new conspiracy theory: Juneteenth was established to undermine the Fourth of July. Try to follow this convoluted logic. “It's about creating a summertime, race-based competitor two weeks before July 4th,” he said, “which should be the most unifying civic holiday on the calendar.”

That CRT crowd is devilishly clever.

Senator Josh Hawley took a break from whining about declining masculinity to declare America was the hero in the story of slavery: “Today is a good day to remember: Christianity is the faith and America is the place slavery came to die.”

Well, Professor Hawley, actually, the slave trade was abolished in the British Empire by Parliament in 1807 and in 1838 for its colonies—long before slavery in the United States was ended by force with the bloody Civil War in the 1860s. Prior to that many American slaveholders and slave traders cited Christianity (or their version of it) not to defeat but to justify human bondage. Hawley ought to read more.

An honorable mention goes to GOP presidential candidate Nikki Haley for using the run-up to Juneteenth to race-bait Barack Obama. She tweeted that Obama “set minorities back by singling them out as victims instead of empowering them. In America, hard work & personal responsibility matter. My parents didn’t raise me to think that I would forever be a victim. They raised me to know that I was responsible for my success.”

This was a disgusting play of the race card, given that Obama was often careful not to characterize Black Americans as victims. In one famous speech, he called out Black men (fairly or not) for abandoning their responsibilities. Haley seemed to be attacking the most prominent Black guy in the United States merely to score points with the GOP base.

When Dot.LA, a website that focuses on the tech scene in Los Angeles, fired its entire editorial staff of eight editors and writers this week, CEO Sam Adams sent a letter to the shitcanned employees declaring that the site was “refining our editorial focus to better serve our readers.” It’s hard to see how that’s going to happen with no editorial employees.

Still, close but no cigar for Adams. This week, the prize is shared by the war rooms of Donald Trump and Ron DeSantis. These two campaigns have entered an idiotic arms race regarding what happened during the Covid crisis. The political camp of each of these GOP presidential aspirants is assaulting the other for having tried to actually help America during the worst days of the pandemic. On Monday night, their respective war rooms each sent out an absurd tweet on this absurd battlefront.

First, Trump’s crew retweeted a May 22 tweet from Steve Cheung, a Trump spokesperson, which displayed photographs of a masked DeSantis encouraging vaccinations during the pandemic. Cheung noted, “Ron DeSanctimonious literally led Florida’s mass vaccination efforts”—as if that was a horrendous crime. Trump’s team added one word to Cheung’s tweet: “REMINDER!”

Within two hours, DeSantis campaign posted a tweet with video of Trump boasting that he did an “incredible” job in pushing for a Covid vaccine and saving “100 million lives.” Its slam on Trump? That he “once again refuses to acknowledge any of the adverse effects” of the vaccines.

Do we need any more evidence to show how freckin’ crazy the GOP has become? Team Trump attacked DeSantis for encouraging vaccinations with the vaccine he (justifiably) takes credit for helping to develop, and DeSantis’ crew assailed Trump for accelerating the development of the vaccine that DeSantis urged Floridians to obtain. This isn’t dumbassnesss; it’s madness. 

The Mailbag

Many readers wrote in to note that my appreciation of Daniel Ellsberg, the Pentagon Papers whistleblower, prompted them to recall the heady days of the antiwar movement and Watergate. One who goes by the name Red Matt wrote:

Ellsberg may be the greatest hero in US history for his actions, which raised millions of people’s consciousness never to accept US foreign policy based upon blind patriotism. He may have moved on, but his influence still remains.

We can only hope.

There were many strong reactions to the issue that explored the danger posed by Elon Musk. Linda Billings emailed:

Musk is very dangerous, and the media give him way too much attention and thus cultural authority, which he does not deserve.

This prompts the age-old question of how much attention the press should give to destructive influences. Over the years, I’ve heard from many readers suggesting that the media ought to stop granting a certain failed casino operator so much attention, even when he was in the White House. The problem is, I don’t see how a disparate media, with no governing body, can collectively decide how much coverage to afford a particular subject. Moreover, when someone does hold immense power and sway—and has a massive following—he or she deserves scrutiny. How to pay heed without amplifying and boosting is a challenge. I’m not sure anyone has figured out that formula.

MJ Maccabee complimented the Musk article but raised “one not-so-small quibble” about my description of Musk as “a boy genius who often displays the maturity of a 14-year-old”: 

Elon Musk is not a genius, except perhaps at self-promotion and salesmanship. He has a nose for sniffing out what will be profitable, but he invented neither Tesla technology nor the SpaceX tech. As his off-the-cuff efforts show, he's not even a competent engineer, e.g., his proposed rescue transport for the boys trapped in the underwater cave was ludicrous, as was his belief that he could replace software engineers at Twitter with mechanical engineers from Tesla.

Remy Luria asked:

How about publishing some solutions to the Musk problem? Doesn’t everyone with an open mind already know he is a flaming antisemite?  

That’s a tough question. What do you do when one of the important town squares of the nation—and the globe—is owned and controlled by a fellow who echoes antisemitic messages, conspiracy theories, and alt-right disinformation? Sensible people could boycott his site, but they would then be sacrificing their own access to important information and networks. And since Twitter is under private ownership—and won’t be nationalized—the public does not have much say in how it is operated. If anyone has a good idea, let us know.

Rick Follett had a comment about televangelist Pat Robertson, whose death I recently wrote about. I noted that Robertson had written a bonkers book called The New World Order that was chockful of antisemitism and conspiracy theories. Follett reported:

In regard to Pat Robertson being antisemitic, I worked for Pat Robertson for 17 years, much of that time I ran the chyron for his 700 Club television show. It was also my duty to record times and events of each show in a running log, paying special attention to prophesies, projections, and other comments he made in the course of the show. This was to assist post-production editing to prove that he was listening to God and that his prophecies came to pass (which didn't happen often, which, curiously, never seemed to bother him much).

I don't recall any overt antisemitism in what Robertson said. I was probably one of the few employees who actually read my copy of The New World Order. and I remember being rather astonished at his mention of the Rothschild conspiracy theory. He had Benjamin Netanyahu on several times. Robertson greatly supported Israel because he viewed the establishment of Israel as a sign of the End Times that he said were projected in Biblical prophecy. I'm not sure about his personal views about Jewish people, but I know they fell into the class of people in Robertson's mind who had to be "saved.”

Also, regarding The New World Order being a bestseller. I haven't seen any reporting about this, but I remember that the ministry—the Christian Broadcast Network—purchased many, many copies to give away as premiums for viewer pledges of financial support. The ministry also provided a copy of the book to all employees as a benefit of employment.

Now that’s a job I had never imagined: chronicling all of Robertson’s crazy prophesies. (A meteor is going to destroy DisneyWorld because it flew a rainbow flag!) But it is common for prominent people to finagle their way on to bestsellers lists by causing organizations with which they are affiliated to buy up gads of copies. Of all Robertson’s many sins, this one is low on the list.

MoxieCam™

“Moxie, what are you looking at? A bunny? Deer?”

“No, the Little Free Library next door. To see if the person looking at it takes that copy of American Psychosis you put in it.”

“Well, it’s only been there a few days.”

“It’s been a week.”

Read Recent Issues of Our Land

June 21, 2023: How Daniel Ellsberg changed the world—and my life; how you can support Our Land; Loves Comes to Buildings on Fire’s love letter to the NYC music scene of the 1970s.

June 17, 2023: How dangerous is Elon Musk?; anatomy of a (No Labels) scoop; Dumbass Comment of the Week (Fox News); the Mailbag; MoxieCam™; and more.

June 13, 2023: HBO’s brilliant Reality—and my appearance in it; Jenny Lewis’ rocks mid-life; and more

June 10, 2023: Pat Robertson’s obits left out a key fact: his crazy antisemitic conspiracy theory; how best to post a Santos scoop; Dumbass Comment of the Week (Jay Monahan); the Mailbag; MoxieCam™; and more.

June 6, 2023: Mike Pence and the right’s revival of its war on gay America; CNN CEO’s big fail; 65 and a bad day to get stranded on Earth; Joy Oladokun’s effort to be the “Black Bruce Springsteen; and more.

June 3, 2023: What the GOP’s hostage-taking in the debt ceiling fight tells us about regulating rogue AI; Dumbass Comment of the Week (Jenna Ellis and Glenn Greenwald); the Mailbag; MoxieCam™; and more.

May 31, 2023: What the hell is Ron DeSantis thinking?; Moonage Daydream is too dreamy; Tina Turner’s “Whole Lotta Love”; and more.

May 27, 2023: How the media aid and abet GOP hostage-takers; Henry Kissinger at 100, still a war criminal; Dumbass Comment of the Week (Pat McCrory); the Mailbag; MoxieCam™; and more.

May 23, 2023: Is contextualizing old movies the same as canceling them?; the Citadel is a forgettable spy show; The Independent needed a rewrite; and more.

May 20, 2023: Lions, rhinos, elephants, and soft power in Africa; more from Namibia; Dumbass Comment of the Week (Elon Musk); the Mailbag; MoxieCam™; and more.

Got suggestions, comments, complaints, tips related to any of the above, or anything else? Email me at ourland@motherjones.com.