This is a thread about the Justice Dept lawyers on Jack Smith’s team who were fired yesterday for their involvement in Smith’s lawfare against Trump. Trump’s reason for firing these lawyers was that they could not be trusted to carry out the president’s agenda. In this thread I will explain another equally strong reason: Smith’s team allowed political bias to overcome the skills and objectivity that litigators of all stripes are expected to have. In simple terms, Smith’s final report establishes that the lawyers working on the DC case against Trump were not very good, professional lawyers.
Examples of poor lawyering abound in Smith’s final report. Here I’ll mention a few. These examples are in addition to the basic violations of due process rights belonging to Trump and to the defendants in state court prosecutions arising out of the same set of facts- the so-called attempt to “overturn the election.” I’ve written and talked on Spaces at length about the constitutional problems with making that report public while prosecutions were ongoing, so I won’t go over those issues here. My criticism here will assume the report was designed to be an honest, objective report to AG Garland and not designed to be made public when Garland released it. Even as a strictly in-house report, it fails even minimal standards trial lawyers must meet.
Trial lawyers are taught to analyze facts and law objectively and thoroughly, always keeping in mind there are usually two sides to every argument. The ability to anticipate the opposing side’s evidence and arguments as to what the evidence proves is an essential attribute for any trial lawyer. Fundamentally, Jack Smith’s final report lacks any hint that the lawyers on his team ever considered, let alone tried to deal with, any evidence and theory of the case that tended to contradict, the theory of the case adopted by the prosecution.
One flagrant example of the Smith team’s tunnel vision involves their theory that part of Trump’s alleged criminal scheme was his effort to induce the throng at his speech on J6 to go into the Capitol and disrupt Congress’s formal proceeding to count electoral votes. As evidence of this illicit attempt, the report points to the fact that during his hour long speech, he used the word “fight” more than a dozen times.
Imagine a prosecutor making this argument to a jury. They would naturally invite many, many examples, caught on video, of other politicians, R and D alike, using the same word, “fight,” in political speeches. This theory is particularly problematic as to Trump. Just last summer after an assassin’s bullet missed killing him by an inch, he stood up with blood running down his face, pumped his fist, and yelled “Fight! Fight! Fight!” As Mark Zuckerberg said, it was the most “bad ass” thing anyone had ever seen.
So now, with that iconic image in everyone’s mind, these idiot prosecutors believe it’s a good idea to remind the jury of that memorable event, and argue when Trump says”fight,” he really means commit an insurrection.
So now, with that iconic image in everyone’s mind, these idiot prosecutors believe it’s a good idea to remind the jury of that memorable event, and argue when Trump says”fight,” he really means commit an insurrection.
Another glaring example of lawyers more concerned with their preferred narrative than with what might go wrong in court was the litany of examples the report uses as proof that Trump lost the election and he knew it. Rather than cite to any serious study that concluded there was no fraud or other irregularities to change the result in any state, we are given a string of examples of some public official or other person seemingly in the know having told Trump the election was fair and he lost.
One such example was CISA director Chris Krebs who famously said the 2020 election was the “most secure” in the country’s history. When he said that, only a few weeks after the election, there was a report by one of the nation’s leading voting machine experts filed in federal court in Atlanta- under seal. That report was made public a couple of years later, and it was a bombshell. The report identified numerous dangerous vulnerabilities. Two other experts testified that Dominion’s administrators password to the voting system’s bios had been unchanged and publicly available on the internet for over five years.
I wonder how these brilliant lawyers would handle someone showing up wearing a password T-shirt just as Chris Krebs took the stand. The experts testified that using the password, one could change votes without a trace. “Most secure” election ever, indeed.
The fundamental problem was the lawyers for the special counsel seem to have been unaware of the evidentiary problem’s fundamental to their theory that “Trump lost and he knew it.” Evidence that person X told Trump he lost is not proof, without more, that there was no fraud or illegality sufficient to change the results in any state. “You lost and there was no fraud” is essentially an opinion. To be admissible, it must be supported by adequate foundation, such as a scientific study by an expert or a thorough investigation by law enforcement.
The Smith report barely touches on what foundation, if any, supported the views of the several people quoted who told Trump he had no case to overturn the election. With only a couple of exceptions, the report ignores the other side of the argument. Yet we’ve been given examples of evidence of fraud and irregularities known by the Trump legal team at the time. In his defense of the DC Bar Association’s attempt to disbar him, former DOJ official Jeff Clark introduced plenty of evidence of fraudulent or illegal votes cast in 2020 that formed the basis for Trump’s court case in Ga- a case never decided by the court because D judges slow walked it.
Lawyers are taught that in writing a report such as the special counsel’s report to the AG, it is critical to present a balanced view of the facts and the applicable law. If there are opposing facts and theories, they must be addressed and analyzed. The special counsel’s legal team produced what can best be described as a political screed. It’s not a fair and balanced view of the case.
P.S. - on the major point I’m making here about the abysmally poor lawyering by Smith’s team, compare his report with a report by another group of “witch hunt lawyers”- the Mueller report. Mueller’s team took the trouble to outline competing theories of the case and to compare and contrast evidence supporting each side. No matter what you think of their motives, the Mueller team produced a report that acknowledged there were two sides to the argument, consistent with how all lawyers are taught.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
