Justice Department

Subterms

    More stories

    • 125 Shares99 Views

      in Elections

      Why Jack Smith Had to Bring This Indictment Against Trump

      by

      Donald Trump has now been indicted three times, accused of crimes occurring before, during and after his presidency. The latest indictment alleges facts from all quarters to prove his criminality: from the vice president to the White House counsel and the heads of the Justice Department, the Department of Homeland Security and the Office of National Intelligence, as well as many others. All are Republican loyalists.But the indictment does more: It skillfully avoids breathing air into a Trump claim of selective prosecution. To not have brought this case against Mr. Trump would have been an act of selective nonprosecution. The Justice Department has already charged and obtained convictions for myriad foot soldiers related to the attack on the Capitol on Jan. 6, 2021, including charging well over 300 people for obstructing the congressional proceedings. In this indictment, the special counsel Jack Smith wisely brings that same charge, but now against the alleged leader of the effort to thwart the transfer of power.That charge of obstruction and conspiracy to defraud the United States in the administration of elections are entirely fitting for the conduct alleged in the indictment. In a civil case last year, the Federal District Court judge David Carter held that Mr. Trump and John Eastman likely engaged in a criminal conspiracy under both those statutes in their schemes to organize false electors and pressure the vice president. Mr. Smith has now said he can prove the same conduct beyond a reasonable doubt.Although the Jan. 6 select committee referred Mr. Trump for investigation for inciting an insurrection, Mr. Smith wisely demurred. The Justice Department has not charged that offense in any other case involving the attack on the Capitol, and insurrection has not been charged since the 19th century. Of course, no president has engaged in it since then — but since no one else has been charged with that crime relating to Jan. 6, it likely would have been an issue. And since the penalty for the insurrection offense is that the defendant would not be eligible to hold federal office, it would have fueled a claim of weaponizing the Justice Department to defeat a political rival.Mr. Trump and others like him will of course continue to assert that the Justice Department has been politically weaponized. That claim has it exactly backward.To not charge Mr. Trump for trying to criminally interfere with the transfer of power to a duly elected president would be to politicize the matter. It would mean external political considerations had infected the Justice Department’s decision-making and steered the institution away from its commitment to holding everyone equally accountable under the law.What those circling their wagons around Mr. Trump are in effect asking for is a two-tiered system, in which the people who were stirred by lies to interrupt the congressional certification are held to account but not the chief instigator. That injustice has not been lost on judges overseeing cases related to Jan. 6. In the 2021 sentencing of John Lolos — a 48-year-old man with no criminal record who traveled from Seattle to hear Mr. Trump’s speech at the Ellipse before being convinced to “storm” the Capitol — Judge Amit Mehta commented on the incongruity in the D.C. courtroom.“People like Mr. Lolos were told lies, fed falsehoods, and told that our election was stolen when it clearly was not,” the judge said. He went on to add that those “who created the conditions that led to Mr. Lolos’s conduct” and the events of Jan. 6 have “in no meaningful sense” been held “to account for their actions and their words.”We are now on the doorstep of the sort of accountability that Judge Mehta found lacking.That is what also makes this indictment of the former president different. Where both the Manhattan hush money case and classified documents case have been, in some part, mired in discussions of whataboutism, the 2020 election interference indictment is where whataboutism goes to die.In this case, the Trump stratagem is unmasked. Given the record of robust prosecutions of Jan. 6 foot soldiers and Mr. Trump’s responsibility for their actions, he has had to resort to saying the Capitol attack was good, and he and his enablers have lauded convicted felons as heroes and “political prisoners.” Mr. Trump’s continued statements in favor of the Jan. 6 defendants can and likely will be used against him in any trial.As the narrative of the indictment lays out, Mr. Trump’s schemes — to sell the big lie and promote election fraud even when he privately conceded to advisers the claims were “unsupported” and “crazy” — are what contributed to the attack of Jan. 6. And it is a relief that the indictment includes Mr. Trump’s role and responsibility in that violence. Many Americans would not understand the Justice Department focusing only on bureaucratic and procedural efforts to affect the congressional certification.As Senator Mitch McConnell said at the close of Mr. Trump’s second impeachment trial, “There is no question — none — that President Trump is practically and morally responsible for provoking the events of the day.”He added: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”What is also clear from the indictment is that Mr. Trump will most likely not be the last white-collar defendant charged for the set of crimes it sets out. Mr. Smith clearly, and properly, considers that the six co-conspirators — parts of the indictment describe actions by co-conspirators that correspond with those taken by, for example, Mr. Eastman and Rudy Giuliani — committed federal offenses that threatened the core of our democracy. The rule of law cannot tolerate those actors facing charges with the main protagonist going scot free.The main task ahead for Mr. Smith is getting his cases to trial before the general election. But the true test ahead will not be for Mr. Smith. It will be for us: Will Americans care about the rule of law enough to vote for it? The courtroom is a place where facts and law still matter, but the criminal cases against Mr. Trump will test whether the same can be said for the ballot box.Ryan Goodman, a law professor at the New York University School of Law, is a co-editor in chief of Just Security. Andrew Weissmann, a senior prosecutor in Robert Mueller’s special counsel investigation, is a professor at N.Y.U. School of Law and a host of the podcast Prosecuting Donald Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 125 Shares99 Views

      in Elections

      Why Jack Smith’s Jan. 6 Trump Indictment Is So Smart

      by

      This is the indictment that those who were horrified by the events of Jan. 6, 2021, have been waiting for. The catalog of misdeeds that Donald Trump is accused of is extensive, some reflected in other prosecutions over classified documents and hush-money payments or in civil lawsuits.But this case — a sitting U.S. president’s assault on democracy — is by far the most consequential. And from the looks of this indictment, the prosecution’s case is going to be thorough and relentless.The charging decisions in the indictment reflect smart lawyering by the special counsel Jack Smith and his team. The beauty of this indictment is that it provides three legal frameworks that prosecutors can use to tell the same fulsome story.It will allow prosecutors to put on a compelling case that will hold Mr. Trump fully accountable for the multipronged effort to overturn the election. At the same time, it avoids legal and political pitfalls that could have delayed or derailed the prosecution.The lead charge, conspiracy under 18 U.S.C. 371, is a go-to charge for federal prosecutors. Count 1 charges a conspiracy to defraud the United States by obstructing and defeating the lawful counting of votes and certification of the election. Conspiracy is the perfect vehicle for describing a complex criminal scheme and identifying all the actors and everything they did.The conspiracy charge, which makes up most of the indictment, encompasses the tentacles of the scheme to overturn the election results. Pressuring state officials to overturn their elections, recruiting slates of fake electors from seven states, trying to corrupt the Justice Department to further the scheme, pressuring Mike Pence to throw out lawful votes and directing the mob to the Capitol on Jan. 6 — all are included as part of a single overarching conspiracy to defraud the United States.A conspiracy requires two or more people who agree to participate. This indictment lists but does not yet charge or formally identify six Trump co-conspirators. Mr. Smith clearly has enough evidence to charge those unindicted co-conspirators but has chosen not to — for now. This, too, is a smart tactical decision.Proceeding against Mr. Trump alone streamlines the case and gives Mr. Smith the best chance for a trial to be held and concluded before the 2024 presidential election. It’s possible some of the unindicted co-conspirators will cut a deal and testify for the prosecution. If not, there is plenty of time to charge them later.Counts 2 and 3 are conspiracy to obstruct an official proceeding and obstruction of a proceeding, under 18 U.S.C. Section 1512. Prosecutors have successfully used this statute to charge hundreds of the Jan. 6 Capitol rioters, including members of the Oath Keepers and Proud Boys, with disrupting the joint congressional proceeding to certify the election results.But when it comes to Mr. Trump and the senior people around him, this obstruction charge is much broader than the assault on the Capitol. The conspiracy to obstruct justice again encompasses all the different methods he and his allies used to seek to overturn the election results by thwarting the proceeding to certify the election. In addition, his dispatching supporters to the Capitol and then taking no steps to stop them for three hours potentially makes him liable for aiding and abetting that obstruction — even though he did not set foot in the Capitol himself. And aiding and abetting is part of the theory of the obstruction charge in Count 3.Count 4 is a civil rights violation under 18 U.S.C. Section 241. That statute makes it a crime to “injure, oppress, threaten or intimidate” any people in their exercise and enjoyment of rights guaranteed by the Constitution or laws. Based on the same evidence, this charge alleges that Mr. Trump and others conspired to injure one or more people by depriving them of their right to have their votes counted.For each of these charges, all aspects of the effort to overturn the election, including those that took place well before Jan. 6, may be introduced as part of a single multifaceted scheme and part of one story that proves all the charges.Prosecutors love having alternative legal theories underlying a single presentation of evidence. It’s a belt-and-suspenders approach: If a legal issue arises that weakens or eliminates one charge, the others remain, and the case can continue. And within the scheme are yet more backstops: If the evidence for one aspect of the scheme falters, the remaining aspects are still more than sufficient to prove the charge.Mr. Smith has also avoided some potential land mines that could be lurking in other charges.One charge that was not included in the indictment falls under 18 U.S.C. Section 2383, which makes it a crime to incite, assist or engage in a rebellion or insurrection against the United States or to give aid and comfort to such an insurrection. This charge was part of the referral from the Jan. 6 committee.It would have faced some potentially tricky First Amendment issues, to the extent it would have relied on Mr. Trump’s speech at the Ellipse on Jan. 6 to allege that he incited the riot. I believe those issues could be overcome, but the free speech battles over that charge would have been time-consuming and distracting because the speech could be easily characterized as a political rally.Seditious conspiracy under 18 U.S.C. Section 2384 is also absent. A number of Proud Boys and Oath Keepers have been convicted of violating that law, which prohibits conspiracies to overthrow the government. But violating the statute requires the use of force. Conviction presumably would require proof that Mr. Trump intended the Capitol riot to take place and that it was not just a political protest that got out of hand. That proof may be there, but the issue could easily become a major distraction.There will be those who say any case that does not charge Mr. Trump with insurrection or sedition is a whitewash that fails to hold him properly accountable. I think those critics are wrong. These charges will allow prosecutors to present the sweeping, multistate scheme to overturn the election, with all its different aspects, to the jury and the public. They are serious felony charges that carry hefty penalties.Although it might have been psychologically gratifying to see Mr. Trump charged with sedition, the name of the legal charge is less important than the facts that will make up the government’s case.This indictment presents detailed and overwhelming allegations. It reflects sound legal and tactical decisions that should allow the government to move quickly and put on a powerful case. The most significant prosecution of Mr. Trump is off to a strong start.Randall D. Eliason is a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He writes the Sidebars blog.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 125 Shares189 Views

      in Elections

      Trump Jan. 6 Indictment Relies Heavily on House Panel’s Work

      by

      The special House committee that investigated the attack on the Capitol created the road map for the charges against the former president.In taking the monumental step of charging a former president with attempting to steal an American election, Jack Smith, the Justice Department special counsel, relied on an extraordinary narrative, but one the country knew well.For a year and a half, the special House committee investigating the Jan. 6, 2021, attack on the Capitol introduced Americans to a sprawling cast of characters and laid out in painstaking detail the many ways in which former President Donald J. Trump tried to overturn the 2020 election. In doing so, it provided a road map of sorts for the 45-page indictment Mr. Smith released on Tuesday.“In a lot of ways, the committee’s work provided this path,” said Soumya Dayananda, who served as a senior investigator for the House Jan. 6 panel. “The committee served as educating the country about what the former president did, and this is finally accountability. The congressional committee wasn’t going to be able to bring accountability; that was in the hands of the Department of Justice.”Mr. Smith’s document — while far slimmer than the 845-page tome produced by the House investigative committee — contained a narrative that was nearly identical: An out-of-control president, refusing to leave office, was willing to lie and harm the country’s democracy in an attempt to stay in power.With televised hearings drawing millions of viewers, the panel introduced the public to little-known lawyers who plotted with Mr. Trump to keep him in power, dramatic moments of conflict within the Oval Office and concepts like the “fake electors” scheme carried out across multiple states to try to reverse the election outcome. Its final report laid out specific criminal charges that a prosecutor could bring against the former president.But Mr. Smith, with the prosecutorial heft of the Justice Department behind him, was able to unearth more evidence, including new details of Mr. Trump’s pressure campaign against Vice President Mike Pence to use his role certifying the election on Jan. 6, 2021, to overturn the results. At one point, according to the indictment, Mr. Trump told a balking Mr. Pence: “You’re too honest.”His indictment detailed how, when warned by a White House lawyer that Mr. Trump’s plan to refuse to leave office would lead to “riots in every major city,” Jeffrey Clark, then a Justice Department official, retorted, “That’s why there’s an Insurrection Act.” And it described how Mr. Trump implied to a top general that he knew he had lost the election, saying he would leave certain problems “for the next guy.”The Justice Department sought and received transcripts of the committee’s hundreds of interviews, but then advanced the investigation beyond what Congress had been able to accomplish. Its officials obtained at least a dozen more key interviews than Congress could, by winning court rulings to pierce through executive and attorney-client privileges that witnesses, including Mr. Pence, had previously invoked against testifying.But ultimately, Mr. Smith brought charges that had been recommended by the committee, including conspiracy to defraud the United States, obstruction of an act of Congress and conspiracy to make a false statement. He added an accusation of deprivation of rights under the color of law.“The Department of Justice’s indictment confirms the work of the committee,” said Thomas Joscelyn, another Jan. 6 committee staff member who wrote large portions of the panel’s final report.Over 18 months of work, the Democratic-led House committee assembled evidence that Mr. Trump first lied about widespread election fraud, despite being told his claims were false; organized false slates of electors in states won by Joseph R. Biden Jr. as Mr. Trump pressured state officials, the Justice Department and Mr. Pence to overturn the election; and, finally, amassed a mob of his supporters to march on the Capitol, where they engaged in hours of bloody violence while Mr. Trump did nothing to call them off.The indictment continuously repeats evidence revealed during the course of the congressional inquiry, including the attempts of Mr. Trump and lawyers working for him to pressure local election officials in Georgia, Arizona and other states.The congressional panel also named several other Trump allies — including the lawyers Rudolph W. Giuliani, John Eastman, Kenneth Chesebro and Mr. Clark — as potential co-conspirators with Mr. Trump in actions the committee said warranted Justice Department investigation. Mr. Smith listed six unidentified co-conspirators who worked with Mr. Trump to try to overturn the election whose actions were identical to the lawyers named in the committee’s report.As he read through the indictment on Tuesday, Representative Jamie Raskin, Democrat of Maryland and a member of the Jan. 6 panel, said he circled new bits of evidence in the document that stood out to him. But over and over, he saw a familiar narrative.“Many of the crucial facts that surfaced during the Jan. 6 investigation reappear in this indictment,” Mr. Raskin said. “We told this story in time for these events not to be buried in ideology and deceit. It feels to me like a powerful vindication of the rule of law in America. And that’s what we were insisting on.” More

    • 50 Shares199 Views

      in Elections

      The Trial America Needs

      by

      At last. The federal criminal justice system is going to legal war against one of the most dishonest, malicious and damaging conspiracies in the history of the United States. Tuesday’s indictment of Donald Trump, brought by the special counsel Jack Smith’s office, is the culmination of a comprehensive effort to bring justice to those who attempted to overthrow the results of an American presidential election.In the weeks after the 2020 election, the legal system was in a defensive crouch, repelling an onslaught of patently frivolous claims designed to reverse the election results. In the months and years since the violent insurrection on Jan. 6, 2021, the legal system has switched from defense to offense. With all deliberate speed, prosecutors first brought charges against Trump’s foot soldiers, the men and women who breached the Capitol. Next, prosecutors pursued the organizers of Trumpist right-wing militias, the Proud Boys and Oath Keepers, who had engaged in a seditious conspiracy to keep Trump in the White House.And now, Smith is pursuing Trump himself — along with six yet unnamed co-conspirators — alleging criminal schemes that reached the highest level of American government. This is the case that, if successful, can once and for all strip Trump of any pretense of good faith or good will. But make no mistake, the outcome of this case is uncertain for exactly the reason it’s so important: So very much of the case depends on Trump’s state of mind.At the risk of oversimplifying an indictment that contains four distinct counts — conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against rights — it can be broken down into two indispensable components. First, it will be necessary to prove what Trump knew. Second, it will be necessary to prove what he did. Let’s take, for example, the first count of the indictment: 18 U.S.C. Section 371, conspiracy to defraud the United States. The statute is designed to criminalize any interference or obstruction of a “lawful governmental function” by “deceit, craft or trickery.”There’s little doubt that Trump conspired to interfere with or obstruct the transfer of power after the 2020 election. But to prevail in the case, the government has to prove that he possessed an intent to defraud or to make false statements. In other words, if you were to urge a government official to overturn election results based on a good faith belief that serious fraud had altered the results, you would not be violating the law. Instead, you’d be exercising your First Amendment rights.The indictment itself recognizes the constitutional issues in play. In Paragraph 3, the prosecutors correctly state that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”Thus, it becomes all-important for the prosecution to prove, beyond a reasonable doubt, that Trump knew he lost. Arguably the most important allegations in the indictment detail the many times that senior administration officials — from the vice president to the director of national intelligence to senior members of the Justice Department to senior White House lawyers — told him that there was no fraud or foreign interference sufficient to change the results of the election. That’s why it’s vitally important for the prosecution to cite, for example, the moment when Trump himself purportedly described one of his accused co-conspirators’ election fraud claims as “crazy.”The strong constitutional protection for efforts to influence or persuade the government makes the intent element inescapable, no matter the count in the indictment. While there are certainly nuances in the other counts regarding the precise form of proof necessary to establish criminal intent, the fact remains that the prosecution will have to utterly demolish the idea that Trump possessed a good-faith belief that he had won the election.But that’s precisely why this case is so important — more important than any previous Trump indictment. If the prosecution prevails, it will only be because it presented proof beyond a reasonable doubt that the election fraud claims that a substantial percentage of Americans still believe to be true were not only false but were also known to be false when they were made.I am not naïve. I know that not even a guilty verdict will change the perceptions of many of Trump’s most loyal supporters. As my Times colleague Nate Cohn wrote on Monday, “The MAGA base doesn’t support Mr. Trump in spite of his flaws. It supports him because it doesn’t seem to believe he has flaws.” The perceptions of these supporters may never change. They may remain loyal to Trump as long as they live.At the same time, however, a successful federal trial would strip Trump’s defenders of key talking points — that his voter fraud and vote manipulation claims have never been fully tested, that the House Jan. 6 committee was nothing but a one-sided show trial and that a proper cross-examination would expose the weakness of the government’s claims. Trump will have his opportunity to challenge the government’s case. His lawyers will have the ability to cross-examine opposing witnesses. We will see his best defense, and a jury will decide whether the prosecution prevails.The case is no slam dunk. I agree with the Politico Magazine columnist and former prosecutor Renato Mariotti, who stated that it is “not as strong” as the federal documents case against Trump. But that’s because the Mar-a-Lago documents case is exceptionally strong and clear. A former Trump administration attorney, Ty Cobb, has described the evidence as “overwhelming.” The facts appear to be uncomplicated. By contrast, the facts underlying this new indictment are anything but simple. And Trump possesses legal defenses — such as challenging the scope and applicability of the relevant statutes — that he won’t have in his federal trial for withholding documents.Yet if a prosecutor believes — as Smith appears to — that he can prove Trump knew his claims were false and then engineered a series of schemes to cajole, coerce, deceive and defraud in order to preserve his place in the White House, it would be a travesty of justice not to file charges.Consider some of the claims in the case. Paragraph 66 of the indictment says that Trump directed “fraudulent electors” to convene “sham proceedings” to cast “fraudulent electoral ballots” in his favor. Paragraph 31, quoting audio recordings, claims that Trump told the Georgia secretary of state that he needed to “find” 11,780 votes and said that the secretary of state and his counsel faced a “big risk” of criminal prosecution if they (as the special counsel describes it) “failed to find election fraud as he demanded.”This is but the tip of the iceberg of the wrongdoing Trump is accused of. But those two claims alone — even leaving aside the events of Jan. 6 and the host of other Trump efforts to overturn the election — merit bringing charges.Millions of Americans believe today that Joe Biden stole the presidency. They believe a series of demonstrable, provable lies, and their belief in those lies is shaking their faith in our republic and, by extension, risking the very existence of our democracy. There is no sure way to shake their convictions, especially if they are convinced that Trump is the innocent victim of a dark and malign deep state. But the judicial system can expose his claims to exacting scrutiny, and that scrutiny has the potential to change those minds that are open to the truth.Smith has brought a difficult case. But it’s a necessary case. Foot soldiers of the Trump movement are in prison. Its allied militia leaders are facing justice. And now the architect of our national chaos will face his day in court. This is the trial America needs.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 113 Shares179 Views

      in Elections

      How Jack Smith Quickly Brought Two Indictments Against Trump

      by

      Last fall, a largely unknown former prosecutor with a beard and a brisk gait flew unnoticed to Washington from The Hague after being summoned to a secret meeting by Attorney General Merrick B. Garland.Jack Smith’s job interview would remain unknown to all but a handful of department officials until hours before he was appointed special counsel to oversee two investigations into former President Donald J. Trump in mid-November.Over the past few months of frenetic activity, Mr. Smith’s anonymity has vanished. He has now indicted Mr. Trump twice: in June, for risking national security secrets by taking classified documents from the White House, and on Tuesday, in connection with his widespread efforts to subvert democracy and overturn an election in 2020 he clearly lost.And he has taken these actions with remarkable speed, aggressiveness and apparent indifference to collateral political consequences.Mr. Smith has now indicted former President Donald J. Trump twice.Maddie McGarvey for The New York Times“He’s going at a very fast clip — not letting the perfect be the enemy of the good — to the point that I sometimes worry they might be going a little too fast and haven’t buttoned everything up,” said Ryan Goodman, a professor at the New York University School of Law, before the release of the indictment in the election case.Mr. Smith told reporters that the attack on the Capitol on Jan. 6, 2021, was “fueled by lies” — Mr. Trump’s lies — during brief remarks on Tuesday, after a jury in Washington indicted the former president on four counts.Mr. Smith is not the first special counsel to investigate Mr. Trump. From 2017 to 2019, Robert S. Mueller III examined ties between Mr. Trump’s 2016 campaign and Russia. In his final report, he laid out a frantic effort by Mr. Trump to thwart a federal inquiry but ultimately cited a Justice Department policy in not making a determination on whether the sitting president had committed a crime. Mr. Smith, by contrast, faces no such limits, given that Mr. Trump is no longer in office.But where Mr. Mueller took two years to conclude his investigations into Mr. Trump, Mr. Smith — who took over investigations into Mr. Trump that were several months old — delivered his basic assessment in two criminal investigations in a little over eight months.Beyond the contrast in circumstances and timing, there are undeniable differences between the two men, rooted in their respective ages, experiences, management styles and prosecutorial philosophies, that have shaped their divergent charging decisions.“His disposition, compared to Mueller, seems very different — he’s working against the clock, Mueller moved a lot more slowly,” said Mr. Goodman, who is a co-founder of Just Security, an online publication that has closely monitored the Trump investigations.Mr. Trump and congressional Republicans have accused Mr. Smith, without evidence, of pursuing a politically motivated investigation intended to destroy Mr. Trump’s chances of retaking the White House, including by leaking details of the case. But department officials have said Mr. Smith is committed to conducting a fair investigation, and he has defended his own lawyers against attacks from the Trump team, who accuse them of using unethical tactics.The former president has taken to calling Mr. Smith “deranged,” and some of his supporters have threatened the special counsel, his family and his team — prompting the U.S. Marshals to spend $1.9 million to provide protection for those who have been targeted, according to federal expense reports that cover the first four months of his tenure. Mr. Smith was flanked by a three-person security detail inside his own building when he delivered remarks to reporters on Tuesday.Mr. Mueller was an established and trusted national figure when he was appointed special counsel, unlike Mr. Smith, who was virtually unknown outside the department and drew a mixed record during his tenure. Mr. Mueller had already solidified a reputation as the most important F.B.I. director since J. Edgar Hoover, after protecting and reshaping the bureau at a time when some were calling for breaking it up following the intelligence failures that preceded the Sept. 11, 2001, terrorist attacks.Robert S. Mueller III, the former special counsel, was an established and trusted national figure when he was appointed.Anna Moneymaker/The New York TimesBut there was, at times, a gap between the perception of Mr. Mueller and his ability to execute a difficult job under fire. Already in his mid-70s, he struck many of those who working with him as a notably diminished figure who, in testifying before Congress at the end of the investigation, was not entirely in command of the facts of his complex investigation.By comparison, Mr. Smith is someone who rose to the upper echelons of the Justice Department but is not well known outside of law enforcement circles. At 54, Mr. Smith, a lifelong prosecutor, is leading the investigation at the height of his career, not at the end of it.Mr. Smith is fresh off a stint as a war crimes prosecutor in The Hague and took over two investigations that were already well down the road. Mr. Smith sees himself as a ground-level prosecutor paid to make a series of fast decisions. He is determined to do everything he can to quickly strengthen a case (or end it) — by squeezing witnesses and using prosecutorial tools, such as summoning potential targets of prosecution before a grand jury to emphasize the seriousness of his inquiries, people close to him have said.When Mr. Smith took over as chief of the Justice Department’s public integrity unit in 2010, the unit was reeling from the collapse of a criminal case against former Senator Ted Stevens, Republican of Alaska. In his first few months on the job, he closed several prominent investigations into members of Congress without charges.At the time, Mr. Smith brushed off the suggestion that he had lost his nerve. “If I were the sort of person who could be cowed,” he said, “I would find another line of work.”Among his more notable corruption cases was a conviction of Robert McDonnell, the Republican former governor of Virginia, that was later overturned by the Supreme Court, and a conviction of former Representative Rick Renzi, Republican of Arizona, whom Mr. Trump pardoned during his final hours as president.Mr. Smith appears to be somewhat more involved than Mr. Mueller in the granular details of his investigations. Even so, he seldom sits in personally on witness interviews — and spoke only sparingly during two meetings with Mr. Trump’s defense lawyers, delegating the discussions to subordinates, according to people familiar with the situation.Mr. Smith’s stony style, intentional or not, has the effect of sowing considerable unease across a conference table or courtroom.James Trusty, who quit the former president’s defense team a day after meeting with Mr. Smith’s team in June, worked for years with Mr. Smith as a senior criminal prosecutor at Justice Department headquarters and told associates he was a “serious” adversary not to be underestimated. Other lawyers said Mr. Smith’s team has fed the sense of mystery by describing him in veiled or cryptic terms, with one calling him “the man behind the curtain.”He has been more public-facing than Mr. Mueller in one critical respect — delivering short, sober statements to the news media after each grand jury indictment.Mr. Mueller said little when faced with a barrage of falsehoods pushed publicly by Mr. Trump and his allies about him and his investigative team. But at a news conference after Mr. Trump was indicted in the documents case, Mr. Smith seemed to be speaking with an added purpose: to rebut claims that one of his prosecutors, Jay I. Bratt, had inappropriately pressured a defense lawyer representing one of Mr. Trump’s co-defendants, according to a person with knowledge of the situation.“The prosecutors in my office are among the most talented and experienced in the Department of Justice,” he said. “They have investigated this case hewing to the highest ethical standards.”While much attention has centered on Mr. Smith, most of the day-to-day work on critical elements of the case has been done by several prosecutors known for their aggressive approaches.One of them is J.P. Cooney, the former leader of the public corruption division of the U.S. attorney’s office in Washington. Mr. Cooney has worked on several politically fraught trials and investigations that drew the ire of Republicans and Democrats alike.He unsuccessfully prosecuted two Democrats — Senator Robert Menendez of New Jersey and Greg Craig, a former White House counsel during the Obama administration — and investigated Andrew G. McCabe, the former F.B.I. deputy director, who was vilified by Mr. Trump for the bureau’s Russia investigation. (Mr. McCabe was never prosecuted.)More recently, Mr. Cooney oversaw the lawyers prosecuting Roger J. Stone Jr., a longtime political adviser to Mr. Trump. The lawyers quit in protest after the Justice Department under William P. Barr intervened in his sentencing. (Mr. Cooney was deeply upset by the intervention, but he said the case was “not the hill worth dying on” according to Aaron Zelinsky, a career prosecutor, who testified before the House Oversight Committee in 2020.)A second key player is Thomas P. Windom, who was brought in nearly a year before Mr. Smith’s appointment to coordinate the complicated Jan. 6 investigation that had once been seated in the U.S. attorney’s office in Washington.Mr. Smith had a stint as a war crimes prosecutor at The Hague, in the Netherlands.Pool photo by Peter DejongMr. Smith has relied on F.B.I. agents to perform investigative tasks, which is not uncommon for special counsels. But the F.B.I. is not walled off from Mr. Smith’s investigation, unlike the agents who were detailed to work for John H. Durham, a special counsel who investigated the origins of the F.B.I.’s Russia investigation.In a letter to House Republicans in June, Carlos F. Uriarte, the Justice Department’s legislative affairs director, disclosed that Mr. Smith employed about 26 special agents, with additional agents being brought on from “time to time” for specific tasks related to the investigations.Mr. Smith, unlike many previous special counsels, did not hire most of the staff: He inherited two existing Trump investigations and moved them from Justice Department headquarters to his new office across town. Some of the investigative legwork was also done by investigators with the U.S. Postal Inspection Service and agents with the Justice Department’s inspector general working alongside Mr. Windom at one point.He has, however, exerted direct control over both inquiries, trying to keep even the most quotidian information about his efforts away from the news media, and been present, if sotto voce, at the most critical moments.During Mr. Trump’s arraignment in Miami in June, Mr. Smith sat in the gallery, closely watching the proceedings. Some in the courtroom suggested he stared at Mr. Trump for much of the hearing, sizing him up.But that was not really the case. He listened intently to the lawyers on both sides, at times leaning in toward a colleague to make a whispered comment or ask a question.Alan Feuer More

    • 138 Shares149 Views

      in Elections

      Here Are the Charges Trump Faces in the Jan. 6 Case

      by

      The newly unsealed indictment of former President Donald J. Trump on Tuesday leveled four criminal counts against him over his efforts to stay in power after the 2020 election: a conspiracy to violate civil rights, a conspiracy to defraud the government, the corrupt obstruction of an official proceeding and a conspiracy to carry out such obstruction.Here is a closer look at the charges.One of the charges, a conspiracy to violate rights, is Section 241 of Title 18 of the United States Code. A conviction on this charge is punishable by up to five years in prison.Congress enacted what is now Section 241 after the Civil War to go after white Americans in the South, including members of the Ku Klux Klan, who used terrorism to prevent formerly enslaved African Americans from voting. But in a series of cases in the 20th century, the Supreme Court upheld expanding use of the statute to election-fraud conspiracies, like ballot-box stuffing.In invoking the statute, the indictment frames it as “a conspiracy against the right to vote and to have one’s vote counted.” Essentially, Mr. Smith has accused Mr. Trump of trying to rig the outcome of the election to falsely claim victory.“The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted and certified,” the indictment said.The indictment cites five means by which Mr. Trump and his accused co-conspirators sought to reverse the results of the election, including pushing state legislators and election officials to change electoral votes won by his opponent, Joseph R. Biden Jr., in his favor instead.“That is, on the pretext of baseless fraud claims, the defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the defendant,” the indictment said.It also cited the recruitment of fake electors in swing states Mr. Biden won, trying to wield the power of the Justice Department to fuel lies about election conspiracy, and pressuring Vice President Mike Pence to delay the certification of the election or reject legitimate electors.The special counsel has accused Mr. Trump of trying to rig the outcome of the 2020 election to falsely claim victory.Maddie McGarvey for The New York TimesAnd when all that failed, it said, Mr. Trump and his co-conspirators “exploited” the violent disruption of the riot on Jan. 6, 2021, by “redoubling efforts to levy false claims of election fraud and convince members of Congress to further delay the certification based on those claims.”The indictment, which recounts each of those episodes in detail, relies on the same basic facts for the other counts against Mr. Trump.One of those, conspiracy to defraud the United States, involves Section 371. Any conviction on this charge is also punishable by up to five years in prison.The possibility of this charge has long been part of public discussion of the investigation. In March 2022, for example, a federal judge ruled that emails of John Eastman, a lawyer who advised Mr. Trump in the effort, were most likely involved in that crime and qualified for an exemption from attorney-client privilege.And the House select committee investigating Jan. 6 recommended in its final report in December 2022 that the Justice Department charge Mr. Trump and others with this offense.The third and fourth counts are closely related: corrupt obstruction of an official proceeding and conspiracy to commit that crime. Both are provisions of Section 1512. Any conviction under that statute is punishable by up to 20 years in prison.Prosecutors have used this law to charge hundreds of people who participated in the storming of the Capitol on Jan. 6, accusing them of obstructing the joint session of Congress to certify Mr. Biden’s victory.In April, a federal appeals court upheld the viability of applying that charge in relation to the Capitol attack, but using it against Mr. Trump may raise different issues since he did not personally participate in the riot. More

    • 125 Shares119 Views

      in Elections

      Jack Smith’s Experience in The Hague and the Trump Investigations

      by

      Donald Trump openly flatters foreign autocrats such as Vladimir V. Putin and Saudi Arabia’s Crown Prince Mohammed bin Salman, and in many ways Mr. Trump governed as authoritarians do around the globe: enriching himself, stoking ethnic hatreds, seeking personal control over the courts and the military, clinging to power at all costs. So it is especially fitting that he has been notified that he may soon be indicted on charges tied to alleged efforts to overturn the 2020 election by an American prosecutor who is deeply versed in investigating the world’s worst tyrants and war criminals.Jack Smith, the Justice Department special counsel — who has already indicted Mr. Trump on charges of illegally retaining secret documents and obstructing justice — has a formidable record as a career federal prosecutor in Tennessee, New York and Washington. Yet he also has distinctive expertise from two high-stakes tours of duty as an international war crimes prosecutor: first at the International Criminal Court and then at a special legal institution investigating war crimes in Kosovo. For several momentous years in The Hague, he oversaw investigations of foreign government officials and militia members who stood accused of war crimes, crimes against humanity and genocide.There are two competing visions of national and international justice at play in Mr. Smith’s investigation of Mr. Trump. One is the lofty principle that even presidents and prime ministers must answer to the law. The other is the reality that such powerful leaders can try to secure their own impunity by decrying justice as a sham and rallying their followers, threatening instability and violent backlash. These tensions have defined the history of international war crimes prosecutions; they marked Mr. Smith’s achievements in court; they are already at play in Mr. Trump’s attempts to thwart the rule of law.Start with the ideals. The United States championed two international military tribunals held at Nuremberg and Tokyo after World War II, which put senior German and Japanese leaders on trial for aggression, war crimes and crimes against humanity. Henry L. Stimson, the U.S. secretary of war, privately exhorted Franklin Delano Roosevelt that even Nazi war criminals should be given a “well-defined procedure” including “at least the rudimentary aspects of the Bill of Rights.”Both the Nuremberg and Tokyo trials convicted senior leaders for atrocities committed while in government, treating their deeds not as acts of state but as personal crimes punishable by law. After the Cold War, these principles of legal punishment for the world’s worst criminals were revived with United Nations tribunals for the former Yugoslavia and Rwanda, as well as special courts for East Timor, Sierra Leone and elsewhere.Mr. Smith hewed to the ideal of individual criminal responsibility as the prosecutor for the Kosovo Specialist Chambers, which was created under U.S. and European pressure to investigate war crimes and crimes against humanity from 1998 to 2000 related to Kosovo’s struggle for independence from Serbia. Although part of Kosovo’s legal system, the institution is headquartered in The Hague and staffed by international judges and personnel — which is how Mr. Smith, a U.S. citizen, wound up serving as its specialist prosecutor.In June 2020, his office revealed that it was seeking to indict Hashim Thaci, then Kosovo’s popular president, who was on his way to the White House for a summit with Serbia convened by the Trump administration. Mr. Thaci, a former Kosovo Liberation Army guerrilla leader, returned home, later resigning as president and being detained in The Hague in order to face several counts of war crimes and crimes against humanity in an ongoing trial that could last for years.It is always difficult and risky to prosecute national leaders with some popularity among their people. Savvy dictators will often secure a promise of amnesty as the price for a transition of power, which is why a furtive impunity — such as that promulgated in Chile by Gen. Augusto Pinochet’s military government in 1978 — is more common than spectacular trials such as Nuremberg or Tokyo. In order to impose justice on Nazi Germany and Imperial Japan, the Allies had to commit to a devastating policy of unconditional surrender, which meant that German and Japanese war criminals could not negotiate for their own necks. Even so, the Truman administration quietly undercut that pledge of unconditional surrender for Emperor Hirohito, fearing that the Japanese might fight on if he was prosecuted as a war criminal. The Truman administration left the emperor securely in the Imperial Palace while his prime ministers and generals were tried and convicted by an Allied international military tribunal in Tokyo.At an earlier point in his career, from 2008 to 2010, Mr. Smith worked as the investigation coordinator in the prosecutor’s office at the International Criminal Court, the permanent international war crimes tribunal based in The Hague. Although 123 countries from Afghanistan to Zambia have joined the I.C.C., the tribunal was a bugbear for the Trump administration; Mr. Trump’s national security adviser, John Bolton, vowed to let it “die on its own,” while his secretary of state, Mike Pompeo, reviled it as a “renegade, unlawful, so-called court.”Anyone working at the I.C.C. must understand how constrained and weak the court actually is. In 2009 and 2010, the I.C.C. issued arrest warrants for Sudan’s president, Omar Hassan al-Bashir, charging him with war crimes, crimes against humanity and genocide in the Darfur region; he is still at large, even after being overthrown. When a prominent Kenyan politician, Uhuru Kenyatta, was charged with crimes against humanity after ethnic violence in the wake of his country’s 2007 presidential election, he decried the I.C.C. as a neocolonial violation of Kenya’s sovereignty. In 2013 he was narrowly elected president of Kenya. In 2014, the I.C.C. prosecutor dropped the charges against Mr. Kenyatta, fuming that Kenya’s government had obstructed evidence and intimidated witnesses.From Kenya to Kosovo, Mr. Smith presumably knows all too well how an indicted politician can mobilize his loyalists to defy and obstruct a prosecution. When Mr. Thaci’s trial started in The Hague in April, some Kosovars rallied in support of a leader seen by them as a heroic guerrilla fighter against Serbian oppression. Mr. Smith’s office has complained that Mr. Thaci and other suspects were trying to obstruct and undercut the work of prosecutors, as well as convicting two backers of the Kosovo Liberation Army for disseminating files stolen from the office.Mr. Trump is already instinctively following a similar playbook of bluster and intimidation — even though he is not facing an international tribunal, but the laws of the United States. He has compared the F.B.I. agents investigating him to the Gestapo and smeared Mr. Smith as “deranged,” while crudely warning an Iowa radio show that it would be “very dangerous” to jail him since he has “a tremendously passionate group of voters.”Yet Mr. Trump will find that Mr. Smith has dealt with the likes of him — and worse — before. The American prosecutor is well equipped to pursue the vision of a predecessor Robert H. Jackson, the eloquent Supreme Court justice who served as the U.S. chief prosecutor at Nuremberg, who declared in his opening address there: “Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance.”Gary J. Bass is the author of “The Blood Telegram” and the forthcoming “Judgment at Tokyo: World War II on Trial and the Making of Modern Asia.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 138 Shares199 Views

      in Elections

      Trump Says Republicans Should Investigate Democrats or Risk Losing Their Seats

      by

      Casting Republicans as meek, former President Donald J. Trump said members of his party should pursue investigations against Democrats — or risk losing their seats.Former President Donald J. Trump lashed out at Republicans in Congress while campaigning in Pennsylvania on Saturday, threatening members of his party who do not share his appetite for pursuing corruption investigations against President Biden and his family — and for retribution.In a litany of grievances about his deepening legal woes and the direction of the country, the twice-indicted former president cast G.O.P. holdouts as meek during a rally in Erie, Pa., criticizing their response to what he described as politically motivated prosecutions against him.“The Republicans are very high class,” he said. “You’ve got to get a little bit lower class.”And then Mr. Trump, the overwhelming front-runner for the 2024 Republican presidential nomination, put party members on notice.“Any Republican that doesn’t act on Democratic fraud should be immediately primaried,” said Mr. Trump, to the roaring approval of several thousand supporters at the Erie Insurance Arena. Throughout the night he referenced the case against Hunter Biden and accused the president of complicity in his son’s troubles.It was the first solo campaign event and the second public appearance for Mr. Trump since the Justice Department added charges against him in connection with his mishandling of classified documents after leaving office.In a superseding indictment filed on Thursday in U.S. District Court in Florida, federal prosecutors presented evidence that Mr. Trump told the property manager of Mar-a-Lago, his private club and residence in Florida, that he wanted security camera footage there to be deleted.Prosecutors also charged him, along with one of his personal aides, with conspiring to obstruct the government’s repeated attempts to reclaim the classified material.On the same day that the additional charges were announced, Mr. Trump’s lawyers met with federal prosecutors to discuss another expected indictment, one centering on Mr. Trump’s efforts to overturn the 2020 election and his actions during the Jan. 6, 2021, attack on the U.S. Capitol.Mr. Trump’s rally on Saturday was his first solo campaign event since the Justice Department added new charges against him in the documents case.Maddie McGarvey for The New York TimesTo Mr. Trump’s unflinching supporters gathered inside the arena, the cascade of indictments was a punchline — if not a badge of honor.Edward X. Young, 63, a debt consolidation company consultant and part-time actor who was dressed like Elvis Presley, wore a T-shirt with a mock-up mug shot of Mr. Trump. He said he had driven 10 hours from Point Pleasant, N.J., to attend Mr. Trump’s rally, his 59th.“I think he’s being persecuted,” he said of the former president. Ruth Jenkins, 61, a Republican from Rochester, N.Y., who works for a Wegmans grocery store, said that she did not believe that Mr. Trump had been motivated to run for president to avoid criminal liability.“Well, who wouldn’t want to be kept out of prison?” she said, claiming that the latest charges against Mr. Trump were the latest attempt to shift attention away from the case against the president’s son.As Mr. Trump prepared to take the stage, campaign workers helped fill in an empty section near the back of the arena, which had been configured to seat 8,000.The playlist for the rally featured “Try That in a Small Town,” the Jason Aldean hit that was filmed at the site of a lynching and pulled from Country Music Television amid criticism.With Mr. Trump as its standard-bearer, the Republican Party has watched Democrats in Pennsylvania secure high-profile victories in the last year, including flipping a U.S. Senate seat, holding on to the governor’s office and gaining control of the statehouse.In 2020, Mr. Trump lost the battleground state by nearly 82,000 votes to Mr. Biden, who was born there.Despite several courts rejecting his election lawsuits in Pennsylvania, Mr. Trump has continued to cling to falsehoods about results, including on Saturday.“We got screwed,” he said, baselessly claiming that news outlets had delayed their race calls because he had been ahead. “I said, ‘Why aren’t they calling Pennsylvania?’”Mr. Trump, who spoke for more than 100 minutes, said that he still had not decided whether he would take part in the first Republican presidential debate, which will take place on Aug. 23 and be televised by Fox News.Mr. Trump said that there appeared to be little upside to debating on a “hostile” network — Fox News began to fall out of favor with the former president after it became the first major outlet to call Arizona for Mr. Biden in 2020 — and noted his commanding polling lead over his G.O.P. opponents. His nearest competitor, Gov. Ron DeSantis of Florida, trailed him by about 30 percentage points in national polls.“If I don’t go to the debate, they say — I’m not saying this — they say the ratings are going to be very bad,” he said. “Should I do it or not?”The crowd’s answer was resounding: “No.” More