Politics

Why Elon Musk’s Jack Smith retribution threat is so worrying

Published

2 years ago

November 11, 2024

Why Elon Musk’s Jack Smith retribution threat is so worrying

Elon Musk on Friday called for the punishment of special counsel Jack Smith in reply to a post on X from Reps. Jim Jordan and Barry Loudermilk calling on Smith to “preserve all records.” The exchange signals that while Smith may be winding down his cases against the president-elect, the Republicans are just starting to wind up their efforts to seek retribution.

That the special counsel is preparing to mothball his two prosecutions of now-President-elect Donald Trump is evident from reporting on Smith’s conversations with Justice Department leadership, as well as Smith’s motion this week asking the trial judge overseeing the Jan. 6 case to pause the court’s deadlines. That motion was almost immediately granted by Judge Tanya Chutkan. In the filing, Smith characterized the circumstances of the case as “unprecedented” and said he intends to file a report with the court by Dec. 2 laying out how he plans to proceed.

The problem for Smith is a DOJ policy that prohibits the prosecution of a sitting president.

The problem for Smith is a DOJ policy that prohibits the prosecution of a sitting president. That policy is a result of lawyers for presidents Richard Nixon and Bill Clinton successfully arguing to the Justice Department that prosecuting the sitting head of the executive branch would violate the Constitution. While other countries can and do prosecute their sitting heads of government and while scholars have questioned the binding power of a DOJ memo authored by its Office of Legal Counsel, there is a less-than-zero chance that Attorney General Merrick Garland revisits that analysis, given his fear of appearing partisan.

This leaves Smith — and the DOJ — with basically two choices: They can dismiss the cases, or they can pause the cases until Trump is no longer president (again). Pausing the cases would be an exercise in futility since Trump will dismiss the cases as soon as he takes office. This would include giving up the pending appeal of Judge Aileen Cannon’s dismissal of the classified documents case — a dismissal based on Cannon’s outlier conclusion that the very appointment of the special counsel was unconstitutional. Dropping an appeal of a poorly reasoned decision that undercuts the use of a special counsel normally would not be palatable to the Justice Department. But this is not a normal time, and a Trump-appointed attorney general will not only drop the appeal but will also likely seek to do away with the use of special counsels altogether.

Another issue for Smith and the department is whether to try and rush out his report before Smith is fired. And the release of any such report raises the possibility of a conflict between Smith and the ever-cautious Garland. Under the regulations governing the conduct and accountability of special counsels, such a conflict could require Garland to report the disagreement to Congress.

Questioning the authority of the special counsel is exactly what Trump and his allies have done since the Mueller investigation. The most recent example, reported by The Washington Post, is the incoming Trump administration’s plan to have the “next Justice Department … look ‘critically’ at what Smith’s team did over the past couple of years to ‘make sure nothing like this ever happens again.’” The Trump-led Republican Party has made a cottage industry out of “investigating the investigators,” with congressional investigations into the investigation of Hillary Clinton, Robert Mueller’s Russian interference probe, the Georgia election interference case brought by Fani Willis, the New York fraud case and the Hunter Biden prosecution, as well as, most famously, special counsel John Durham’s own investigation.

Durham embodies the pinnacle of the Republican fetish for investigating investigations. He spent four years, much time in private dinners with former Attorney General William Barr and millions of taxpayer dollars to uncover exactly nothing, while also managing to lose two jury trials. But Durham could soon be unseated as reigning champ of the “investigate the investigations” game.

Investigations carried out by Congress, however, can be a double-edged sword for Republicans.

The joint letter from Jordan’s House Committee on the Judiciary and Loudermilk’s Subcommittee on Oversight demanding Smith’s team preserve all their documents signals the gleeful ramping-up of their investigation into the prosecutions. The request itself is modeled after what is called a “preservation notice” in litigation, which puts the recipient on notice not to destroy any potentially relevant or discoverable documents. Such requests are highly intrusive and usually overbroad — but directing such a notice to Smith is a meaningless, showboat action. Smith’s team already needs to preserve its documents in the normal course of recordkeeping — not to mention the historical value of these particular records. Prosecutors are not in the habit of shredding their files upon the conclusion of a case.

The Jordan-Loudermilk inquiries would normally be frustrated, however, by the DOJ’s standard refusal to provide information or testimony about a pending criminal investigation or case. But if Smith dismisses the cases, then that argument is weakened. Moreover, a Trump-appointed attorney general is likely to order full disclosure of any and all information sought, without regard to protecting witnesses or sensitive information. Similarly, if called to testify, Smith and his team will not have the shield of a pending case with which to deflect inquiries.

Investigations carried out by Congress, however, can be a double-edged sword for Republicans. A probe in this case will involve testimony about and the disclosure of that evidence Jordan and Loudermilk want preserved. Such a proceeding may not be what Trump wants, given that it puts a renewed focus on acts that resulted in dozens of criminal charges against him, both federal and state. NBC News reporter Ken Dilanian raised the specter of a more Nixonian approach when he asked whether Trump might not just order all of the prosecution’s accumulated evidence at the DOJ be destroyed. This more commonsense approach to erasing the history of the federal cases against Trump would now run afoul of the congressional notice of preservation.

Nor are congressional inquiries the only weapon available to Republicans. An attorney general fully committed to doing Trump’s bidding could direct the DOJ to begin actual criminal investigations.

Mike Davis, a former clerk to Supreme Court Justice Neil Gorsuch who is now rumored to be a potential nominee for attorney general, illustrated this in a sexist rant directed at New York Attorney General Letitia James: “Let me just say this to Big Tish James. … I dare you to try to continue your lawfare against President Trump in his second term. Because listen here, sweetheart, we’re not messing around this time,” Davis said on a podcast. “And we will put your fat ass in prison for conspiracy against rights, I promise you that.”

This is the same Mike Davis who previously spoke of his wish to harm Trump’s political enemies: “I want to drag their dead political bodies through the streets, burn them, and throw them off the wall. (Legally, politically, and, financially, of course.)” It’s unclear what criminal charge Davis has in mind when he speaks about “conspiracy against rights,” but in other threats against Liz Cheney and Cassidy Hutchinson, Davis specified obstructing a congressional investigation and lying to Congress as charges he believes should be pursued.

Not only is there zero evidence upon which to open such investigations against James or Smith, much less on which to charge or convict, the motivation Davis expressed also violates the DOJ Manual. For example, Section 9-27.260 pertaining to “Initiating and Declining Charges—Impermissible Considerations” bars the use of “political associations, activities or beliefs” as a factor in the decision to bring charges. Section 9-85.500 of the manual also requires that “federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

However, such rules are of little value in the face of an attorney general who’s determined to ignore and violate them.

Smith and his team started late through no fault of their own. By the time Smith was appointed, it was always clear that getting the Jan. 6 case to trial before the election was a tall order. Against the odds, in the face of a conservative Supreme Court majority that seemed inclined to allow the clock to run out, Smith’s team made speedy progress with the aid of Chutkan’s no-nonsense management of the case.

But “almost” in criminal prosecutions counts for nothing. History will judge Smith’s efforts only by what in his report sees the light of day. And if an incoming Trump DOJ opens punitive criminal investigations, then Smith and many others will suffer the consequences of Garland’s belief that justice must be blind to political realities — regardless of how much those political realities stand in the way of justice.

Shan Wu

Shan Wu is a legal analyst and former federal prosecutor who served as counsel to then-Attorney General Janet Reno.

Politics

Iowa’s last Democrat on how he can win in Trump country

Published

49 minutes ago

August 26, 2026

Blue Light Newsroom

Iowa’s last Democrat on how he can win in Trump country

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Politics

The other Dan Sullivan makes November ballot against Sen. Dan Sullivan

Published

10 hours ago

August 26, 2026

Blue Light Newsroom

Alaska GOP Sen. Dan S. Sullivan can’t shake his same-name challenger.

Retired teacher Dan J. Sullivan punched a ticket out of the state’s top-four, all-party primary early Wednesday morning. He could now play spoiler in a high-stakes Senate clash between the Republican senator and former Democratic Rep. Mary Peltola that could help swing control of the upper chamber.

Republicans fought and failed to keep Dan J. Sullivan off the primary ballot, arguing he was a Democratic plant designed to boost Peltola. Both Dan J. Sullivan and Peltola’s campaign have denied any coordination.

The senator’s allies have already taken steps to mitigate the second Sullivan’s potential vote siphoning, in some cases running ads using the senator’s middle initial to help differentiate between the same-named candidates.

Supporters of the state’s ranked-choice voting system, which kicks in for the general election, argue the process helps curtail the spoiler effect. But the presence of other candidates could still skew the results of the battleground race. Outside groups flooded the primary with more than $2 million to boost myriad fringe candidates — and could do so again ahead of November.

It’s not smooth sailing for Peltola, either, as she wages an uphill battle to flip a red seat in a state President Donald Trump won by 13 percentage points in 2024. She recently replaced her campaign manager in a staffing shakeup ahead of the primary, among other internal moves.

Politics

‘It’s put up or shut up time’: Battleground Republicans want the Darline treatment

Published

10 hours ago

August 26, 2026

Blue Light Newsroom

President Donald Trump notched a major win on Tuesday night. Republicans in battlegrounds wonder if it was the best use of his time and money.

Sen. Darline Graham defeated Rep. Ralph Norman in South Carolina’s snap Senate GOP runoff, handing Trump a revitalizing win after several of his endorsed candidates fell in recent primaries.

It was a victory that Graham, a complete political unknown six weeks ago, could not have pulled off without Trump’s steadfast support, underscoring just how much his influence still matters among the Republican electorate in the deeply conservative state.

But South Carolina’s Senate seat will not dictate the balance of power in Washington, and GOP strategists working on critical swing state campaigns are eager for Trump to finally direct his attention to them.

“The message coming out of this is that obviously the president’s support is still super powerful. The president’s operation still has the ability to move the needle in a lot of these states,” said a Republican strategist working on several battleground races, including in Georgia, who was granted anonymity to speak candidly about Trump’s involvement. “Hopefully, this is a sign of things to come that the president is willing to get involved and really start to move the needle in some other places that obviously matter a little bit more than South Carolina.”

Trump’s persistent backing of Graham defined the race: He championed her appointment to her late brother Sen. Lindsey Graham’s seat, he coaxed her into the race with an early endorsement, stood by her as she stumbled on the debate stage, and flew down to Myrtle Beach for a rare political rally that few of his chosen candidates have enjoyed this cycle. MAGA Inc., Trump’s behemoth super PAC, even spent a slice of highly sought after cash from its $400 million stockpile in the closing days of the race.

And yet, the president hasn’t taken a meaningful step into the states that will matter in a few short months — even as battleground Republicans have been clamoring for him to spend his MAGA Inc. money.

“It’s now or never. It’s put up or shut up time, and it’s really time to start to see if he’s going to get serious,” the GOP strategist said. “You’ve got September and October to really move the needle here, and it just doesn’t seem like there’s any sense of urgency, or like we understand that we are down big in some of these states.”

During her victory speech in Columbia, Graham acknowledged Trump’s heavy hand: “Our victory would not have been possible without you, and we are truly grateful,” Graham said of the president. “South Carolina is truly Trump country.”

Norman’s take on the president’s participation was not as rosy: “The president got involved. He has that right. That’s his prerogative,” Norman said in his concession speech Tuesday, prompting jeers from the crowd at his election night watch party. “Y’all,” he continued, “his policies are good. I never understood why he got in this race. It is what it is, and I’ll accept it.”

Norman’s bewilderment reflected several national and South Carolina Republicans’ confusion as to why the president would expend energy for the safe Republican seat when his MAGA allies like Mike Collins in Georgia, scandal-plagued Ken Paxton in Texas and Michael Whatley in North Carolina are facing tough Senate battles against Democratic opponents.

“There’s the principle,” said a North Carolina-based GOP strategist who was granted anonymity to speak candidly about the battleground picture. “If you’re not Trump and you have these people shoved down your throat, you’re like, ‘Okay, are you gonna help?’”

The White House did not immediately respond to a request for comment.

Some Republicans are worried that though Trump helped power Graham’s win, the president’s overall unpopularity may be more of a curse than a boon in any highly competitive battleground state. A series of Trump-backed candidates lost gubernatorial and congressional primaries in recent weeks, including in Georgia and Iowa.

Republicans overall are facing a tough election environment given the ongoing and unpopular war in Iran, backlash to the administration’s highly-visible deportation agenda and voters’ persistent cost of living concerns.

“You have a president and maybe even a vice president that are just so underwater politically in the polls, that they might be a help by not intervening,” said Matthew Bartlett, a GOP strategist and former State Department official in the first Trump administration.

Still, Trump swept the battlegrounds in 2024, and his ability to boost Graham despite her foreign policy debate gaffe and questions about her political inexperience serves as a reminder of his electoral prowess to campaign officials.

The question remains when — or if — he’ll throw them a presidential life raft.

“I wouldn’t count on the money if I were in these states,” said the North Carolina-based Republican strategist. “He still could. I’m just saying, I wouldn’t count on it. We’re not dealing with somebody that’s, you know, super calculated in the way they plan.”

For months, Republicans across the country have watched on as the president has continued to amass a remarkable pile of cash — and many have implored him to empty his pockets in their races. The president told reporters last week that he’ll spend “a lot of that money” to boost “Republican candidates that I think are good,” without being specific.

However, what some saw as a distraction from the greater Republican cause this year, others read as the first few drops of Trump’s cash flood.

“If they’re going to spend 800 grand in South Carolina, they’re going to spend in the midterms,” said Matt Mackowiak, a Republican strategist based in Texas who worked on Sen. John Cornyn’s failed reelection campaign and is now backing the GOP ticket. “It signals they’re going to make a substantial investment in the midterms because you don’t make an 800-grand investment in South Carolina and say, ‘Yeah, we’re going to let everybody do their own thing.’ This was in some ways a test case.”

Trump’s targeted support for Graham — the kind that some Republicans are banking on to shift the dial later this fall — paid off for her in dividends on election night. Horry County, the site of the president’s marquee rally with the candidate late last week, resoundingly broke for Graham.

Trump’s backing also helped open the door to endorsements from key South Carolina Republican figures, including fellow GOP Sen. Tim Scott, who helped Graham shore up support in his Charleston-area home base, Gov. Henry McMaster, and two members of the state’s congressional delegation, Reps. Russell Fry and William Timmons.

Outside spending also proved crucial to Graham’s success. Her campaign and its allies outspent Norman by more than $5 million in the runoff alone, according to AdImpact.

Trump’s allies took a victory lap after Graham’s victory was confirmed Tuesday evening.

“The power of the Trump endorsement is alive and well in South Carolina,” said Mike Hahn, a GOP strategist involved in the midterms. “A good opening salvo for the team at MAGA Inc. and the president ahead of the midterms.”