Attorney General Merrick Garland’s appointment of Jack Smith as special counsel to oversee two federal criminal investigations involving former President Donald Trump was praised by some of Smith’s former Justice Department colleagues, who highlighted his fairness, energy and effectiveness. Yet, there has been little independent examination by the media or nonpartisan groups of Smith’s relevant 2010-2015 performance as chief of the department’s Public Integrity section, the unit that prosecutes criminal misconduct by public officials.
To begin such an inquiry, one might examine Smith’s most high-profile case, that of former senator and Democratic vice presidential candidate John Edwards. It was a prosecution Smith decisively lost. Jurors voted to acquit Edwards of several felony violations of federal campaign finance law. The core issue in that trial could be central to the most talked about potential cases against Trump: allegedly interfering with the post-2020 transfer of presidential power and allegedly obstructing the FBI’s investigation of missing classified and other federal government records. Simply put, “Did the defendant intend to break the law?”
In the illuminating Edwards case, this boiled down to, “Did the evidence show beyond a reasonable doubt that Edwards ‘knowingly and willfully’ accepted individual donations designed to influence the 2008 Democratic presidential primaries well in excess of the individual federal contribution limit of $2,300 per year?” In post-trial television appearances, some jurors who voted to acquit indicated they thought Edwards was guilty of at least one offense but said sufficient evidence “was just not there to prove guilt.”
The main witness for the prosecution was Edwards’ longtime political aide, Andrew Young. He testified that his boss arranged for two donors to provide almost $1 million, largely through Young, to support Edwards’ pregnant mistress and hide the affair from both his wife and primary voters in the midst of his campaign for the Democratic presidential nomination. However, a withering defense cross-examination highlighted Young’s inconsistent and inaccurate statements on a number of matters. Jurors concluded that his overall credibility was “weak.” Some of Young’s testimony even helped the defense argue that Edwards had no intent to break the law. Young recalled the senator relating that his lawyers had assured him he was not breaking campaign finance law by accepting the donations. Another aide reported a similar conversation with Edwards. The prosecution was reduced to asserting, without evidence, that Edwards made up the story about consulting counsel because he knew that his conduct was illegal.
A related issue was whether Young, who handled most of the funds provided, was acting as Edwards’ agent or exploiting his boss’s affair for his own benefit. Beyond travel and living expenses for the pregnant mistress, mainly while she was staying with Young’s family, the majority of funds Young handled were expended on his new, luxurious house.
Regarding prospective indictments of Trump for allegedly “corruptly” obstructing justice or official proceedings, allegedly conspiring to defraud the United States, and other possible crimes, one can easily imagine the former president asserting that he believed he was acting legally based upon his lawyers’ advice. Nor can it be excluded that he would assert that one or more of his numerous advisers pursued their own interests, rather than acting as his agents.
Although the specifics of the Edwards campaign finance case were novel and challenging, the strongly adverse outcome raises serious questions about Smith’s and his colleagues’ judgment concerning the sufficiency of evidence to prove criminal intent. First — and most importantly — how well was Young’s potential testimony and that of his wife Cheri vetted for accuracy and consistency during his grand jury appearance, interviews with prosecutors and immunity negotiations? Second, considering the urgent need to corroborate his assertions about the political purpose of Edwards’ scheme, did the prosecution underestimate the impact of the unavailability to testify of its two financiers, Rachel “Bunny” Mellon, who provided $725,000, and Fred Baron, who put up $194,000? (Mellon was excused because of her age — she was 101 — and Baron died three years before the indictment.)
After all, whether or not these donors were, in part, attempting to influence a presidential election, with Edwards aware of that purpose, was the key to determining whether the funds were illegal political contributions. Third, in their absence, why did the government place so little emphasis during the trial and in its closing argument on powerful circumstantial evidence from which the jury might have inferred political motives? Mellon was the largest contributor ($3.5 million) to Alliance for a New America, a pro-Edwards section 527 political organization that was running pro-Edwards ads in presidential primary states at the same time as she was subsidizing candidate Edwards’ undefined, “non-campaign,” “personal needs.” And Baron was the finance chief of Edwards’ formal campaign committee.
Finally, since the government’s case received so little support from the jury, was the Justice Department delinquent in refusing, during plea negotiations, to countenance Edwards pleading guilty to lesser charges without going to prison? According to the department’s “Principles of Prosecution,” a federal attorney should commence a prosecution only if he believes “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”
None of the above suggests that Trump did or did not break the law — only that, if he did, proof of his criminal intent beyond a reasonable doubt may depend upon prosecutors displaying more skills than they did in the Edwards case. And one flawed prosecution does not, by itself, signify that Jack Smith will move forward with a weak case, if he makes a case against Trump at all. But in the absence of a fuller evaluation of Smith’s past performance as Public Integrity section chief, Garland should be especially cautious in evaluating his eventual recommendations.
Stephen R. Weissman is former associate director for policy at the nonpartisan Campaign Finance Institute and legislative representative for Public Citizen. He was formerly a subcommittee staff director with the House Foreign Affairs Committee, and an associate professor of political science and political economy at the University of Texas at Dallas.