Adobe Express makes it quick and easy to create everything I need for my business. From social posts, TikToks and flyers, all in just a few clicks. Get Adobe Express for free. Search for Adobe Express to find out more. Hey everyone, Ellie here wishing you a happy midweek. I guess we are now the week before inauguration. We are just days away from a brand new presidential administration taking over and we are deep.
into Biden administration endgame. A few months ago, I wrote a piece where one of our listeners wrote in and said something like, you know, I always listen and read and enjoy. what Ellie writes, but there's times when what he writes just really sets me off. And I think he jokingly, or I forget who came up with the joke, me or him. I'll credit the listener said something like, you need to put a trigger warning in front of some of these, which I thought was kind of a good idea. I guess.
I'll put a modified trigger warning in front of this one. It's not an over the top take, as I think you'll see. And what I'd ask you to do. Let me just assume for the sake of argument, you don't like Trump. And let me just assume for the sake of argument, you've been rooting for Jack Smith for the last year and a half or two years or whatever to take Trump down. Let me just ask you to sort of clear that from your mind.
Listen to what I argue here and tell me if I'm wrong. Tell me if I'm being unfair. Tell me if I'm overstating it or being. overly critical of Jack Smith. Or maybe you agree. Maybe I can persuade you a little bit. So as you'll see, I think it's a complicated picture that Jack Smith has left behind. I think he leaves a complicated and less than fully satisfactory legacy. Let's see. You can judge for yourself. All right, here we go.
I don't often talk publicly about my basketball career, but here it goes. In college, I led Rutgers University to three straight Final Fours, including a national title on an unforgettable half-court buzzer beater to topple those preppies from Duke. I left a year early to go pro, and I proceeded to take the Sixers to the NBA crown, averaging 31 points and a triple-double as we blasted past Bird and the Celtics, MJ and the Bulls, and then Magic and the Lakers.
I suppose I should mention that I accomplished all this while shooting alone on my neighbor's hoop. Get me into a real game with actual humans playing on the other team, and I was more of a six points per game YMCA rec league type. Turns out it's much easier to play one on zero. Like me on the hardwood, Jack Smith was a prosecutorial force when unopposed.
undefeated when uncontested, but put him on or in the court with a judge and a defense team and political reality standing in the way, and he's produced tepid results. In that sense, Jack Smith's official report is a fitting capstone to his tenure as special counsel. He kicked Trump's ass one more time, but only on paper. Meanwhile, the subject remains untouched as he prepares to take the presidential oath of office next week.
Smith's decision to draft a final full-blown narrative was legally appropriate and necessary. Under the regulations, the special counsel, quote, shall provide the attorney general with a confidential report explaining his prosecution or declination decisions, end quote. The AG in turn has discretion over whether and how to disclose the report to Congress or the public, though Merrick Garland had previously made clear his view that any AG ought to turn over such reports immediately.
Now, Trump and his team staged a desperate, frivolous legal effort to delay publication of the report, plainly with an eye towards squashing it once he retakes the presidency next week. But when Judge Eileen Cannon. who has largely ruled in Trump's favor throughout this case, rejected the emergency request twice in one day, the jig was up. Shortly after the clock struck midnight on a pre-existing injunction, DOJ let the report fly.
Like much of Smith's prior written work, the report makes a compelling case based on an exhaustive investigation and a solid foundation of facts. There are no startling new revelations, but that shouldn't undermine the power of the evidence laid out by the prosecution. All told, Smith has articulated his largely unrealized case against Trump in extraordinary depth. In addition to the final report, he has drafted two indictments detailing his theory of criminality and the supporting evidence.
Just weeks before the 2024 election, Smith submitted a 165-page narrative omnibus. plus 1,800 pages of exhibits contained in four volumes. And he filed reams of other pretrial briefs and documents fleshing out the case against Trump. The factual record is substantial.
Now that matters, but it's also a bit of a consolation prize because Smith was decidedly less successful when faced with meaningful opposition in the courtroom. And his failures typically resulted from his oft-celebrated, hyper-aggressive litigation. litigation tactics. Early on, for example, Smith sought a gag order on Trump that was so preposterously overbroad that the razor-sharp judge, Tanya Chutkin, narrowed it substantially, and the Court of Appeals later trimmed it down even more.
Smith requested an initial trial date of January 2024, just five months after indictment, notwithstanding that the average case in the district court in Washington, D.C. takes over 28 months. from indictment to verdict. Of course, that trial never even happened at all. Smith asked the U.S. Supreme Court to fast track the immunity issue.
Yet he refused to provide a specific justification for his need for speed. The Supreme Court accordingly declined the emergency motion. Later, the court resoundingly rejected Smith's original indictment based on immunity principles, sending him scrambling back to- the drawing board, never to recover. As we've discussed before, the court's decision was unduly broad and confoundingly vague, in my view. But like it or not, it's the law now, and it was a setback for Smith and for future prosecutors.
Smith's final report encapsulates the fundamental problem with his prosecutorial approach. His statement of the evidence in the report is all business and compelling. And while it's standard for a special counsel to take a moment to thank his hardworking, honorable, nonpartisan team members. Smith goes far beyond that. He opens his report with a strident, defensive, four-page letter in which he quotes John Adams and renowned attorney generals Edward Levy and Robert Jackson.
Smith congratulates himself repeatedly in conclusory fashion for his own bravery in upholding the rule of law as he sees it. And he huffs that certain public criticism of his case is, quote, laughable. It's impossible. to read Smith's opening diatribe and conclude that everything that follows is the result of an entirely dispassionate inquiry. Try it, actually, if you doubt me. Read that four pages and then ask yourself honestly, could everything that follows this
be entirely dispassionate. Part of the larger problem is that Smith arrived as special counsel in November 2022 with outlandish public hype. Hopeful memes proliferated from those who quickly forgot the lessons of Robert Mueller action figures. One play on the Jaws movie poster featured Smith's grinning, bearded visage looming under the water, looking up at an image of Trump floating on the surface under the title.
Laws, get it? Like Jaws, Laws. Others portrayed Smith as a caped Superman and as a sheriff wearing a badge reading Karma. A former colleague of Smith's tweeted that he, meaning the colleague, was sometimes described as, quote, a pit bull. But, quote, Jack Smith makes me look like a golden retriever puppy, so tenacious and fearless and apolitical and ethical, end quote.
Smith came largely as advertised. In the courtroom setting, he kept the aggression odometer pinned to its max. But Smith's approach, heavy on bravado and snarling menace, ultimately yielded lackluster results. And in the broader view... Should Jack Smith be lauded for his tactics when Pam Bondi takes over as AG in a few days in all likelihood? Do we want her to emulate Smith? Should we celebrate it if Pam Bondi?
Takes the position set on attack mode? Should she approach the job like some hyper-aggressive uber pit bull? Smith's investigative findings about Trump in January 6th will stand as a valuable part of the historical record. So too will the rejection of his prosecutorial tactics by the courts and to an extent, the American voting public. Left to his own devices. Smith was a legend, but in the well of the courtroom, he was decidedly less. Thanks for listening, everyone. Stay safe, stay informed.