The House Judiciary Committee privately interviewed former special counsel Jack Smith last month and published the transcript last week. The good news is that the exchange was mostly substantive and respectful. The bad news is that Smith is still clinging to flawed legal theories. They’re worth highlighting because even well-intentioned prosecutors can do damage when they lose sight of constitutional limits.
Smith’s August 2023 Trump indictment focused on Trump’s repeated claims that the 2020 election was stolen in the run-up to the Capitol riot on Jan. 6, 2021. Put simply, the indictment accused Trump of lying so pervasively about the election that he committed criminal fraud.
The committee’s Republican majority, led by Chairman Jim Jordan (R-Ohio), pressed Smith on whether that theory of the case was constitutional: Wouldn’t Trump’s statements be protected by the First Amendment?
Smith replied: “Absolutely not. If they are made to target a lawful government function and they are made with knowing falsity, no, they are not. That was my point about fraud not being protected by the First Amendment.”
That’s a bold claim by the prosecutor. Political speech — including speech about elections, no matter how odious — is strongly protected by the First Amendment. It’s not unusual for politicians to take factual liberties. The main check on such misdirection is public scrutiny, not criminal prosecution.
Of course fraud is a crime. But that almost always involves dissembling for money, not political advantage. Smith’s attempt to distinguish speech that targets “a lawful government function” doesn’t work. Most political speech is aimed at influencing government functions.
Smith might think his First Amendment exception applies only to brazen and destructive falsehoods like the ones Trump told after losing the 2020 election. But once an exception is created to the First Amendment, it will inevitably be exploited by prosecutors with different priorities. Imagine what kind of oppositional speech the Trump Justice Department would claim belongs in Smith’s unprotected category.
Smith also said he makes “no apologies” for the gag order he tried to impose on Trump during the prosecution. The decision to criminally charge a leading presidential candidate meant the charges would feature in the 2024 campaign. Yet Smith fought to broadly limit Trump’s ability to criticize him or the prosecution in general, claiming such statements would interfere with the legal process.
He seemed unconcerned about interfering in the democratic process by seeking to muzzle a candidate for high office. Three appellate judges, all nominated by Democratic presidents, ruled that Smith’s proposed gag order infringed on Trump’s First Amendment rights. While some restrictions were appropriate, the appeals court said, Trump had to be able to rebuke his prosecutor — as a candidate and a defendant.
The former special counsel apparently has no regrets about this heavy-handed approach, even though it failed legally and probably helped Trump win the 2024 election. Smith was a war-crimes prosecutor in the Hague before taking over the Trump investigations, and Europe’s protections for free speech are far weaker than America’s. Maybe he went native in the Netherlands.
Smith was earnest in his desire to punish Trump for trying to overturn an election, but he took a cavalier attitude toward constitutional safeguards — and that’s before getting into his subpoenas for the phone records of Republican members of Congress, including former House Speaker Kevin McCarthy. Any honest accounting of the Trump legal saga needs to reckon with this.
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