Support The Bulwark and subscribe today.
  Join Now

One More Sign That Special Counsel Jack Smith Is Dead Serious

No stone unturned, no empty folder unsubpoenaed.
February 13, 2023
One More Sign That Special Counsel Jack Smith Is Dead Serious
(Photo by Win McNamee/Getty Images)

This weekend brought the strange news that Jack Smith, the special counsel investigating Donald Trump, asked the grand jury to issue a subpoena to Trump’s Mar-a-Lago office for an empty folder. Why?

The Guardian reports that last month, Smith subpoenaed the folder, marked “Classified Evening Briefing,” even though Trump’s lawyers told him it had nothing in it. This tells us something important: that Smith is serious about pressing forward with a case against Trump for his 18 months of obstructing government efforts to get back all government documents he stashed at his Florida estate.

When zealous prosecutors are intent on bringing a case, they leave no stone unturned. Trump has told reporters that he thought keeping folders marked classified was “cool.”

That admission, along with the reported hesitation to return this folder, may reflect the same mental state that led him to unlawfully resist returning some of the 300-plus documents with classified markings that were seized in August’s court-authorized search of Mar-a-Lago.

Further, in cases prosecutors intend to bring, they do not want it said that they waved off any legal requirement, especially the Espionage Act’s provisions compelling a former officer’s return of every—every—government document upon request.

And when the crucial issue triggering a potential prosecution is obstruction, serious prosecutors do not put up with even a hint of it continuing. Trump’s team was evidently slow to give back the empty folder, even as they turned over other materials with classified markings (not to mention a junior associate’s laptop). In light of his history of resistance, the special counsel apparently lost patience and had a subpoena issued for the folder.

Obstruction is what distinguishes Trump’s case from those of former Vice President Mike Pence and President Joe Biden, each of whom cooperated from the start in returning classified materials whose possession appears to have been inadvertent. This past week, Pence consented to another FBI search of his home, which turned up another classified document.

Last month, when Biden’s lawyers found such materials at his University of Pennsylvania office and his home, some observers suggested that it “complicated” Smith’s Mar-a-Lago investigation and potential prosecution of Trump for unlawfully retaining classified materials. Others thought Smith should forgo that case and focus exclusively on January 6th and Trump’s role in the attempted coup leading up to it.

The news late last week that Smith had subpoenaed Pence to appear before the grand jury investigating the latter case makes clear that the special counsel is proceeding full speed ahead on that front, too.

Smith’s job is not to worry about politics or about a different special counsel’s probe into Biden’s possession of classified documents. Smith’s sole responsibility is to do what Attorney General Merrick Garland has repeatedly insisted upon: “Follow the facts and the law.”

Of course, that won’t stop Trump from hauling out his tried-and-false public relations strategy. Friday, following the news that Smith had demanded the return of more Mar-a-Lago material, Trump’s spokesman called it “nothing more than a politically-motivated witch-hunt.”

That phrase is an old favorite of Trump’s—and understandably so, as it serves several of his purposes at once.

Primarily, it aims at keeping his MAGA base amped up in support of his 2024 GOP nomination. If he grabs it and then the presidency, he will end any federal prosecution against him, or a pending appeal of any conviction already obtained.

But the narrative also serves another Trump play—trying to avoid conviction through a form of “jury nullification” at a future trial. He would love to score at least one MAGA believer onto any jury that tries his case. The hope is that such an individual would hang the jury, however overwhelming the evidence.

That would be a win for Trump. To achieve it, he needs to keep alive the narrative that prosecutors are going after him only because he is running for president.

The answer to that line, of course, is obvious. Just as we don’t want prosecutors targeting someone because they are running for office, we don’t want prosecutors to refrain from indicting lawbreakers just because they declare their candidacy. That is especially so when the alleged violation involves attempting to destroy the Constitution by inciting and then cheering on a violent attack on the Capitol.

Which is why Jack Smith is aggressively following the facts and the law.

Dennis Aftergut

Dennis Aftergut, a former assistant U.S. attorney and former Supreme Court advocate, is currently of counsel to Lawyers Defending American Democracy.