Politics

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

Published

1 year 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

Former ICE official falls short in Ohio battleground district GOP primary

Published

1 hour ago

May 6, 2026

Blue Light Newsroom

Former ICE official Madison Sheahan lost a GOP primary in a battleground Ohio House district on Tuesday, a relief to Republicans who worried she could sabotage their chances of flipping the seat.

Former state Rep. Derek Merrin won the GOP nomination in the 9th Congressional District for the second cycle in a row, and will face Democratic Rep. Marcy Kaptur in November. He lost to Kaptur by less than one percentage point in 2024.

Republicans see the seat as a prime pickup opportunity after the Ohio legislature redrew the state’s congressional map to make the district more favorable for Republicans.

Merrin’s victory comes with a sigh of relief from Republicans in the state who raised concerns about Sheahan’s background — she served as former deputy ICE director under former Homeland Security Secretary Kristi Noem — being a soft target for Kaptur in a general election.

Sheahan drew attacks from fellow Republicans in the primary for her role in overseeing President Donald Trump’s aggressive immigration enforcement operations in major cities, which triggered violent confrontations and protests.

Those clashes culminated in the killing of two American citizens by immigration officials in Minneapolis. Sheahan launched her campaign days after the killing of Renee Good, but before the death of Alex Pretti.

Trump didn’t endorse ahead of the primary, but the race was defined in part by candidates seeking to be the most MAGA candidate in the field. Sheahan ran TV ads touting her role at ICE and her connection to the Trump administration. Merrin went up with an ad in the race’s final days highlighting the endorsement he received from Trump during his 2024 campaign.

Kaptur starts the general election fight with a significant resource advantage over Merrin. Federal Election Commission filings from mid-April showed Kaptur with $3.1 million in cash on hand, dwarfing Merrin’s $189,000 in reserves.

Both the DCCC and the NRCC are expected to invest significantly in the race.

Politics

‘The Kamala Harris problem’: Vance’s 2028 hopes hinge on Trump, Iowa Republicans say

Published

2 hours ago

May 6, 2026

Blue Light Newsroom

DES MOINES, Iowa — Vice President JD Vance was greeted warmly by Republicans in Iowa on Tuesday, with would-be caucus goers and strategists optimistically curious about his potential as a 2028 presidential contender.

But first, they’re hoping he can help turn the economy around.

Vance’s fate is unavoidably linked to President Donald Trump’s. He’ll either carry the mantle of Trump’s accomplishments all the way into his own term in the White House — or be dragged down by Trump’s dismal approval ratings, which have spiraled amid an unpopular war in Iran and voters’ economic pessimism.

During Vance’s first trip as vice president to the early caucus state — where he was campaigning for Republican Rep. Zach Nunn at a rally in a manufacturing warehouse in this battleground House district — Vance’s close ties with Trump were on full display. He credited the president repeatedly for tariffs, tax cuts and agriculture industry aid. And he avoided any mention of 2028.

But his association with Trump’s agenda presents a high-risk, high-reward proposition that could make or break his political future, operatives and rallygoers said.

“That’s the risk of being part of an administration,” Iowa GOP strategist David Kochel said. “This is the Kamala Harris problem.”

Rep. Randy Feenstra, who is running for governor, said in between shaking hands with attendees that Iowans “absolutely” associate Vance with Trump and expressed confidence that the White House can deliver outcomes that benefit the state.

“We’re all in this together,” he said. “We trust Trump and the vice president and what they’re doing, and things are going to be great.”

Republicans in Iowa are loath to turn their back on Trump, the 2024 caucus winner who remains deeply popular among the base. Faded Trump-Vance campaign signs still line the rural roads around the state, and Iowa Republicans said they remained largely optimistic that Trump, with Vance by his side, can steer the economy in the right direction.

In a brief post-rally interview, Nunn said part of the benefit of the vice president’s trip was allowing Iowa Republican officials to “share what they want to see out of the next leader in 2028.”

But Americans’ patience for the administration’s economic policy to have a positive effect is wearing thin. A Washington Post/ABC News/Ipsos poll released on Sunday found 65 percent of Americans disapprove of Trump’s handling of the economy and 76 percent disapprove of Trump’s handling of cost of living issues. And even as Vance blamed former President Joe Biden’s administration for the teetering economy, an April POLITICO Poll found 46 percent of Americans feel Trump bears at least some responsibility for the state of the economy.

And the economic effects of Trump’s policies are particularly hard felt in Iowa’s vast agriculture industry. Trump’s tariff regime blocked off markets that had been reliable purchasers of U.S. agriculture goods, while the war in Iran has spiked the cost of diesel, which farmers depend on heavily.

Jake Chapman, a former president of the Iowa Senate who has advised multiple Republican presidential candidates in Iowa, said the conflict and the trade negotiations with other countries are top of mind for Iowa Republicans.

“A lot of people are thinking about foreign policy in particular, and how that impacts ag inputs and our agriculture economy,” he said.

In his speech, Vance acknowledged that the Trump administration hasn’t fully delivered on its economic promises. “We got a lot more work to do,” Vance told the crowd of hundreds. “We recognize that work. We’re excited about that work. That’s why you sent us to Washington, D.C.”

Still, those negative feelings towards Trump appear to be spilling over to Vance. That same poll found 48 percent of Americans disapprove of Vance — slightly worse than other senior Trump administration officials, including FBI Director Kash Patel, Defense Secretary Pete Hegseth and fellow potential 2028 candidate Secretary of State Marco Rubio.

Rubio’s ascension in the 2028 shadow primary — both in the eyes of Americans and in standing with Trump’s inner circle — further complicates Vance’s path to the nomination. Eric Branstad, the son of former Iowa Gov. Terry Branstad and adviser to Trump’s three presidential campaigns in Iowa, said Vance’s portfolio may not resonate with Iowans as much as Rubio’s in an administration juggling multiple high-profile foreign conflicts.

“They’ve watched the secretary of state completely perform. He’s been put in all of the tough spots, and he has overperformed,” Branstad said. “The vice president is performing great. It’s just not been as noticeable as the secretary of state.”

Vance, however, has gotten an early start on building a campaign infrastructure, should he so choose to activate it. He has been a frequent surrogate and fundraiser for the GOP’s midterm operation and has campaigned for Republicans in battleground seats around the country. On Tuesday, he voted in Ohio’s competitive 1st District GOP primary and headlined a fundraiser in Oklahoma before travelling to Iowa.

“He’s the man who’s leading the charge to win the midterms,” Nunn said during his remarks.

Even as Vance stayed focused on this year’s elections on Tuesday, some Republicans are ready to look beyond the midterms. GOP gubernatorial candidate Adam Steen said on the outskirts of the rally he thinks Iowa Republicans are eager to organize around the next generation of party leadership.

“I don’t know why not just start talking about 2028,” Steen said. “We need to know who we’re going to be getting behind. And if they did that now, I don’t think it’d offend anybody. I think it’d be a great thing.”

The vice president’s office declined to comment on Vance’s thinking about a future presidential campaign.

Whether or not the vice president can carry the ideological torch for Trump’s political movement may depend on how closely Vance — or any 2028 hopeful — can align with Trump. Iowa GOP Chair Jeff Kaufmann said at the rally he doesn’t believe the next Republican presidential nominee necessarily has to appeal directly to Trump’s base to be successful.

“The Republican Party is multifaceted,” Kaufmann said. “We have MAGA voters… We have Christian evangelicals, we have business, we have Libertarians. I think all of them together are going to unite around some of the basic principles that everybody shares.”

Yet being Trump’s vice president brings certain advantages with Republican voters. Even if Vance isn’t afforded the goodwill that brought the president a dominant wire-to-wire favorite in the 2024 Republican primaries, Kochel said Vance “gets one of the gold tickets” in the contest.

“[Vance] will be the front-runner going into any caucuses that we have here in Iowa,” GOP governor candidate and state Rep. Eddie Andrews said on the sidelines of Tuesday’s rally.

But Iowa caucusgoers are notoriously scrupulous when vetting future world leaders. And Nunn acknowledged that Vance will at some point need to forge his own path to leading the party.

“Nobody can walk in Donald Trump’s footsteps, because it’s Donald Trump,” Nunn said.