Lowry: Jack Smith should go away

Even the Democratic deus ex machina is having a bad stretch.

No matter how favorable the presidential race has looked for Donald Trump, there's always been the possibility that Special Counsel Jack Smith would get to trial with his Jan. 6 case before the election and, at the very least, dominate the news cycle for weeks and, in all likelihood, convict Trump in a case involving more serious matters than hush money to a porn star.

Now that President Joe Biden stumbled so badly in the first presidential debate, lawfare is more important than ever to Democrats, but Jack Smith's J6 case is hanging by a thread.

Democrats blame the Supreme Court, which has undercut Smith in two new decisions. In the belief that what the situation requires is a futile and stupid gesture, Alexandria Ocasio-Cortez says she's going to file articles of impeachment against conservative justices.

Yet, it is Smith who has forced novel and sensitive legal issues to the fore. The Biden Justice Department and Democrats may believe that it's the role of the Supreme Court to expedite a politically motivated, legally dubious prosecution of a major-party presidential candidate prior to a national election, but it's not.

Because what Smith is doing is unprecedented, it has raised questions that haven't been answered before — such as, you know, whether a former president of the United States can be prosecuted at all.

If the Biden Justice Department wanted such questions decided well before the 2024 election, it needed to indict Trump earlier than August 2023.

As it is, Jack Smith has been in a race against the clock because the political usefulness of his prosecution disappears after Election Day 2024, and if Trump wins, the prosecution itself goes away. This means that Smith, against Justice Department guidelines, is conducting his prosecution on a political timetable.

The Supreme Court just made Smith's hope to get the case to a jury sometime soon much harder by concluding that presidents have immunity for their official acts, and some of the Jan. 6 charges, indeed, involve official acts. The obvious play for Jack Smith would be to strip his case down to charges involving private acts, such as the so-called fake electors scheme. Since the Supreme Court majority said even that isn't clear-cut, though, the way would be open for Trump to appeal — with its attendant delays — an even more minimal case.

The majority opinion, written by Chief Justice John Roberts, is not unassailable, but neither is it wildly unreasonable or going to lead to future presidents droning their political opponents with impunity.

Meanwhile, two of Smith's charges rely on a provision passed as part of the Sarbanes-Oxley Act after the 2001 Enron scandal that doesn't obviously have applicability to the events of Jan. 6. Last week, a majority of the Supreme Court — in a decision joined by Justice Ketanji Brown Jackson, by the way — adopted a narrow reading of the law, further complicating Smith's task.

It would be better if these matters of law were being decided as abstract questions without knowing who will be affected one way or the other before a national election, but Jack Smith has made that impossible.

A more modest prosecutor never would have gotten himself or the country in this fix.

It is very fitting that Smith's appointment as special counsel may itself be constitutionally defective, and is under serious challenge in the classified documents case he is pursuing in Florida.

By rights, he should go away. Smith represents the worst tendency of the law-enforcement and national-security establishment since Trump's rise to prominence in 2016. The basic idea has been that it's OK to stretch or break norms as long as it's in the cause of opposing Trump. Showing remarkably poor judgment, Smith assumed that everyone, including the Supreme Court of the United States, would go along.

Now that it hasn't, he's poorly positioned to assist Joe Biden when he needs it most.