Trump’s prosecutor faces a very high bar, and so far he has fallen short

In most criminal trials, the prosecuting attorneys have one job: to convince a jury that the defendant deserves to go to jail. Every now and then, however — maybe once in a career — they need to be able to do more than that. In highly controversial cases, or with ones that garner an unusual level of public attention, the prosecutor has a larger job: to convince the broader community that the person on trial should go to jail.

Special Counsel Jack Smith has an even higher burden to bear than that. He needs to convince the country —maybe not all of the country, but certainly more than just the half that didn’t vote for Donald Trump — that Trump deserves jail.

Taken at face value, Smith has a long way to go. Indeed, assuming every single allegation in the indictment of the former president is true, he’s not even close. This is because there are no allegations in the indictment that Trump did anything with the classified documents that harmed the country. He didn’t sell them to the North Koreans or give them to Vladimir Putin. Chinese intelligence agencies didn’t infiltrate Trump’s bathroom and sneak off with nuclear secrets.

To be sure, such harm is not a legal or technical requirement for a conviction. But right now, a good chunk of the country is asking itself whether we really want to throw a former president of the United States in jail — for what well may be the rest of his life — for a crime that is not only victimless, but also apparently commonplace among and seldom enforced against former officeholders. 

I recognize that others will make the case that there is a victim here — the rule of law, which I agree has value in and of itself. But I am a lawyer and a former lawmaker, so I’m not sure it means as much to a large swath of the nation as it does to me.

More importantly, any defense of the rule of law necessarily implies an evenhanded application of that law. The Justice Department has a problem on that front, too. Ages ago, then-FBI Director James Comey addressed the nation and declared that the Department of Justice (DOJ) had determined that “it (was) possible that hostile actors gained access to Secretary (Hillary) Clinton’s personal e-mail account.” In that account those “hostile actors” would have had access to “matters that were classified at the Top Secret/Special Access Program level.”

As of now, at least, the Justice Department has not made similar allegations regarding Trump. It will not be lost on some, then, that the government chose not to pursue one high-profile political figure in a case where she may have actually allowed enemies access to classified information, but has chosen to prosecute another figure who did not allow such access.

I’m not defending what Trump did. Indeed, it is indefensible. And I am assuming for the sake of argument that everything in the indictment is true, which is far from established. 

I’m simply positing this: If the DOJ doesn’t want to tear this country apart, it had better have something else in the hopper that is more damning than what it has offered the public so far. To jail a president in this manner, you’d really need something that shocks members of the Freedom Caucus into silence — something that forces the talking heads at Fox News and Newsmax to begin openly questioning Trump’s fitness for office. They need to have something which, if proven, causes a good chunk of MAGA America to take pause. 

That may sound unreasonable, but we’ve seen something like that before. Fifty years ago, two days after it was revealed that President Richard Nixon had erased part of a damning audiotape, two senators walked into the Oval Office and told the him that he had lost the support of his own party in Congress. They told him that 10 of his supporters in the House of Representatives who had recently voted not to impeach him had changed their minds. They also told him that several senators had indicated that they would vote to remove him from office. Nixon resigned the next day.

Nearly two-thirds of the nation supported Nixon’s impeachment by the time he left office, even though he had won 60 percent of the popular vote less than two years earlier. For now, at least, the Justice Department hasn’t given any indication that it can produce evidence against Trump sufficiently persuasive to achieve such widespread support.

If all of this sounds like it isn’t fair to Jack Smith, it isn’t. If it sounds like we are asking him to be more much more than just a federal prosecutor, then yes, we are. But that is what “prosecutorial discretion” is all about.

The DOJ has chosen to prosecute Trump, which is its right. Indeed, some people would suggest it is an obligation. But perhaps the entire reason we have a Department of Justice, an FBI, a court system and the rule of law is to help keep the country together. Maybe trying to put a former president and leading candidate for another term in the White House in jail serves that purpose.

But so far, it certainly doesn’t look like it.

Mick Mulvaney, a former congressman from South Carolina, is a contributor to NewsNation. He served as director of the Office of Management and Budget, director of the Consumer Financial Protection Bureau and acting White House chief of staff under President Donald Trump.