Has Jack Smith botched the Trump indictments?

The legal system has utterly failed to disqualify former President Trump from office. Whether he becomes the next president is now anybody’s guess.

Much of the fault may be laid at the feet of special counsel Jack Smith, who has pursued Trump with the zeal of Inspector Javert, but has thus far come up empty handed.

The open-and-shut case involving Trump’s mishandling of the classified Mar-a-Lago documents has been dismissed on unprecedented legal grounds involving Smith’s standing to prosecute him. The Washington case involving Trump’s conspiracy against democracy is back to the start, with Smith losing on immunity in the Supreme Court.

Straining to right a listing ship, Smith has filed a 165-page, procedurally irregular dump of his grand jury materials, containing evidence that Trump cannot refute. The filing obviously flouts the internal Justice Department rule that “Federal prosecutors … may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

So Smith has not played it by the book. Veteran prosecutor Elie Honig calls the brief “Smith’s October Cheap Shot.” It is certainly a late hit.

None of the facts in Smith’s submission are game-changing reveals. The narrative is the same as before, with the new details only fleshing out the case under the guise of trying to get around the Supreme Court’s immunity decision. Obviously, the aim is to blacken Trump further on the eve of the election.

We now have new details on Trump’s effort to pressure Vice President Mike Pence to throw the election his way; Trump’s phone use and use of Twitter as the Capitol was attacked; and his conversations with family members about efforts to contest his electoral defeat, ostensibly after he knew he had lost.

Most damning is Trump’s callousness when informed of the peril his vice president encountered at the hands of the mob he unleashed. He posted to Twitter that Pence had lacked the “courage” to do what was right. The mob became enraged, and the Secret Service took Pence to a secure location. Trump’s reaction: “So what?”

What’s sauce for the goose ought to be sauce for the gander. Democrats, justly outraged in 2016 by FBI Director James Comey’s explosive revelation that Hillary Clinton’s emails were found on the laptop of Anthony Weiner, husband of Clinton aide Huma Abedin, on the brink of the election should have a similar reaction to Smith’s filing. Both prosecutors violated the long-standing Justice Department practice not to take investigative steps just before an election. The reasons for the rule not to mix politics with law enforcement are obvious. Neither revelation served any legitimate law enforcement purpose. Smith could have waited a month. There was no hurry.

This was not the only prosecutorial mistake Smith has made. He is a bloodhound who can’t catch the hare. He took more than 2 1/2 years to indict Trump over Jan. 6 in the first place. Did he not think that Trump would make motions, seek delays and throw a monkey wrench into his timetable under the venerable principle that I learned in the U.S. attorney’s office decades ago? “No trial, no conviction.”

Then he brought the slam-dunk Mar-a-Lago documents case in Florida. He could have brought it in Washington. The jury pool in Florida would be favorable to Trump. In 2020, Trump won Florida with 51.2 percent of the vote. In Washington, he won just 5.4 percent. Was Smith nuts?

Florida was the home of Trump-friendly Judge Aileen Cannon, twice rebuked by the 11th Circuit for off-the-wall rulings on the Mar-a-Lago search warrant. Cannon’s bias in favor of Trump was so self-evident that two federal judge colleagues advised her to decline the case when it was assigned to her. Smith bet he could avoid Cannon in Florida, but badly miscalculated the odds. Smith’s chances of landing before Cannon, because of the peculiarity of local rules, were 1 in 3. It was a sucker's bet, and Smith crapped out.

Smith also overprosecuted his case. He did not need to join Trump’s valet, Walt Nauta, and his Mar-a-Lago property manager, Carlos De Oliveira, as co-defendants with Trump. It only complicated discovery and played into Trump’s strategy of delay. Smith should have anticipated that Nauta and De Oliveira would argue with some force for time for document review and discover. The two could have been indicted separately. The evidence against Trump’s agents would have been admissible against Trump in a trial where Trump was the only defendant.

So Smith is left spinning wheels, desperately seeking to save two cases that will obviously be dismissed if Trump is elected. And if Vice President Harris is elected, the cases may go away anyway.

Smith’s clock management has been pathetic. He is just about to hear the final whistle.

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.