Jack Smith Hits His Stride

Photo of Jack Smith at a press conference, Credit: Alex Wong / AP via AFP

A triathlon is a multi-discipline race involving swimming, cycling and running over long distances. And the Iron Man triathlon sounds insane: 2.4 miles of swimming, 112 miles of biking, and then a marathon of 26.22 miles. 

I write this because Special Counsel Jack Smith is not only a brilliant and accomplished prosecutor, overseeing teams of lawyers on cases involving gangs, violent crimes, financial fraud and public corruption, he is a nine time Iron Man triathlete. And the kind of focus, discipline and endurance it takes to achieve that is serving him well in the investigations and indictments against Donald Trump and his cronies.

The pace of the investigations and cases is accelerating, and from where I sit, we could see some fairly explosive developments quite soon. So let’s swim, bike and jog our way around this legal terrain that Smith has already mastered and assess what he may soon have in store.

A superseding indictment?

First, the big news. A bombshell dropped yesterday from a U.K. source, the Independent, with a report predicting a second set of charges will drop soon against Trump and possibly many of his attorneys including Rudy Giuliani. According to sources, this superseding indictment—meaning, one that issues upon an already-indicted defendant—could land in a different venue or a number of other venues besides South Florida. The report further indicates that Smith and his team are holding their firepower until they see whether Judge Aileen Cannon, a Federalist Society jurist, will issue rulings that are unfavorable or biased against the government in naked service of the defendant who appointed her.

The potential new charges are many. Per reporting, there are between 30 and 45 additional charges that could “stack” on top of the 37 existing ones. The new charges reportedly would be based on as-yet undisclosed evidence, including other recordings of Trump that are in the hands of Jack Smith and his team.

I want to caution that this report has not been corroborated by any other news outlets yet. But the Independent’s sources were correct the last time in predicting the timing of the first set of federal charges, even though they were wrong about where they would be filed—in Florida, not in D.C. as had been reported. So we must dutifully take this news with a bit of salt to temper any hopeful sweetness.

Ms. PACman

While the Florida indictment focuses on Trump’s illegal, willful retention of national defense documents, the indictment references at least two instances where Trump allegedly disseminated national security information to unauthorized persons. As I wrote about earlier, there is a damning audio tape of Trump that records him showing off a top secret military plan to attack Iran to a room full of other people at his golf resort in Bedminster, New Jersey. All of these people are likely prosecution witnesses to Trump’s illegal act of dissemination.

But there is a second incident mentioned. As the New York Times reported,

In one episode, the indictment recounted how Mr. Trump displayed a classified map to someone described as “a representative of his political action committee” during a meeting in August or September 2021 at his golf club in Bedminster, N.J.

The representative of the PAC was Susie Wiles, one of the top advisers for Mr. Trump’s presidential campaign, according to two people briefed on the matter. A Trump spokesman declined to comment.

Ruh-roh. This puts Trump and Wiles in an extremely awkward position, because she ultimately may have to take the stand and testify against her boss while she is working as a top advisor to his campaign. That testimony could form the basis for a conviction for illegal dissemination under the Espionage Act. The irony is as thick as orange foundation here.

Moreover, as part of its reporting, the Times added that the grand jury in Florida is not yet done with its work. In recent weeks, it has issued even more subpoenas to a number of people connected to its continuing inquiry, answering a mystery that Smith had alluded to in a motion for a Protective Order in which he had referenced an “ongoing” investigation. These subpoenas tend to support the idea, set out in The Independent’s piece from Thursday, that superseding charges are forthcoming.

Another Queen for a Day

Yesterday, I wrote about how Trump’s one-time personal attorney Rudy Giuliani had taken an interview with federal prosecutors under the terms of a “proffer” agreement, where he would provide information, with limitations on its use, in the hopes of reaching some kind of plea or immunity deal. I prefer the term “Queen for a Day” agreement, though in Rudy’s case it honestly reminds me of when he disturbingly did drag with Donald Trump.

Shudder.

It’s now confirmed that there is another key inner Trump circle witness who is cooperating with authorities under his own Queen for a Day agreement. 

Mike Roman was a senior advisor to Trump’s reelection campaign and was tasked with Election Day operations. Along with Giuliani, Roman was in charge of efforts to advance fake slates of Trump electors in seven battleground states.

The FBI had seized Roman’s phone back in the summer of 2022 along with the phones of John Eastman, Rudy Giuliani, MyPillow CEO Mike Lindell, Trump lawyer Boris Epshteyn, disgraced Justice Department official Jeffrey Clark, Giuliani associate Victoria Toensing, Nevada GOP Chair Michael McDonald, and Congressman Scott Perry. But federal authorities only recently began conversations about Roman’s cooperation. 

The timing of the proffer deal is a clue. Roman’s deputy, Gary Michael Brown, appeared last week to testify before the federal grand jury in Washington D.C. And Michael McDonald, the Nevada GOP state party chair whose phone was also seized, similarly appeared before the grand jury along with his vice-chair, Jim DeGraffenreid. Both were part of the fake slate of Nevada electors organized in part by Roman, and both testified under a limited grant of immunity after previously taking the Fifth hundreds of times before the January 6 Committee. (Fun fact: Prosecutors can force testimony before the grand jury from witnesses who plead the Fifth by agreeing to grant such limited immunity.)

Mike Roman had also been called to testify before the January 6 Committee but repeatedly invoked his Fifth Amendment right against self-incrimination. He did manage to state that, with respect to Giuliani, “I don’t believe I have had any interaction with him before the election,” but when asked about interactions with Giuliani afterwards, Roman clammed up.

With the proffer deal, Jack Smith and his team will likely learn much of what Roman knows, adding it to the information from the testimonies of the Nevada fake electors and Roman’s deputy. All of these men are potential witnesses who can place Trump and others within the conspiracy, specifically whether they agreed to create illegal, fake electors as part of a plan to overturn the 2020 election. That’s called Conspiracy to Defraud the United States, and it’s a very serious crime before a much friendlier jury pool in Washington, D.C.

Smith prepares to cycle

Special Counsel Jack Smith has endured a hard swim to get where he is: with one grand jury issuing 37 charges against Trump related to pilfered state secrets and another preparing to indict him around the fake elector scheme and other parts of the attempt to overturn the 2020 election. Now, he is nearly ready to reach the shore, where he will mount a racing bike for the second leg of the race: that long, tough ride of getting all his cases to trial.

This is a test of wills and of endurance. Smith is certainly no stranger to this level of challenge, while Trump has never faced legal peril before and is already committing many rookie errors, mostly involving his inability to STFU.

I don’t want to jinx anything, and a lot certainly could still go wrong given a really unfortunate jury pool in Florida and the Hon. Loose Cannon for a judge. But if it’s down to the Iron Man versus the Ketchup Guy, I’m going with Mr. Smith, particularly as he goes to Washington for the rest of this case.

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I hope you enjoy and appreciate my summaries, adding a daily dose of clarity in these crazy times. I depend upon voluntary paid supporters to be able to devote myself to this each day. So if you’re able to help out and have been meaning to do so, consider upgrading your account today. It would mean so much to me to be able to keep at this job, which I love, and not have to go back to a law firm just to pay my rent! — Jay