Former special prosecutor Jack Smith has long operated under Irish poet, playwright and novelist Oscar Wilde’s rule that “the only way to get rid of a temptation is to yield to it.”
In recent months, the public has learned of a wide range of secret orders targeting members of Congress, Trump allies and others. Now the Trump administration has learned that FBI Director Kash PatelKash Patel and White House Chief of Staff Susie Wiles were also targeted by Smith in 2022 and 2023 when they were private citizens.
Smith was a controversial choice for special counsel because of his history of aggressive legal arguments and tactics, including his unanimous loss before the Supreme Court in the case that overturned the conviction of former Virginia Governor Robert McDonnell.
His tendency to stretch the law to its limits also did not sit well with juries in high-profile cases, including his case against former North Carolina Senator John Edwards, who was accused of using campaign funds to cover up an extramarital affair. That case ended in an acquittal.
Despite such criticism, Smith immediately returned to his previous pattern of casting aside any restraint or caution. Even Democrats raised objections earlier this year to his attacks on Republican members of Congress, including former House Speaker Kevin McCarthy.
Smith told airlines not to tell members of Congress that their calls were being confiscated. Not only did such documents reveal potentially confidential sources ranging from journalists to whistleblowers, but Smith’s silence order prevented Congress from responding to or challenging the alleged unlawful demand.
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Now the Trump administration claims that Smith and the previous Biden administration effectively buried Patel and Wiles’ targets. It took a year into the new Trump administration for these orders to come to light.
The early accounts of the orders contain equally disturbing elements. Reuters reported: “According to two FBI officials, the FBI recorded a telephone conversation between Wiles and her attorney in 2023. Wiles’ attorney was aware the conversation was being recorded and consented, but Susie Wiles did not.”
It is astonishing to hear an attorney agree to the FBI recording an attorney-client conversation as a general matter. However, recording such a conversation without notifying the client would be a breathtaking breach of secure communications.
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There is a lot we still don’t know.
At first glance, these orders appear to be consistent with the previous allegedly unlawful demands. Smith had virtually no basis to attack Republican members and Trump allies. It was a fishing expedition in which Smith simply drew up lists of all known allies of President Donald Trump.
There are also concerns about the response to this controversy. There are reports that ten FBI employees have been fired. Officers often carry out orders from superiors in such investigations. The government should assure the public that these officers received a fair trial before being removed for their role in carrying out orders.
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The recently released files from these investigations constitute an indictment against Smith himself. He was given a historic mandate to investigate a former president. Instead of showing any restraint to show the public that this was not a partisan effort, Smith gave in to his worst temptations by targeting a long list of Republicans.
In his earlier testimony, Smith offered little to justify these orders, other than the fact that such secret orders occur routinely. However, he focused on a who’s who of the top political opponents of President Biden and the Democrats.
To make matters worse, on the eve of the 2024 presidential election, Smith struggled to release damaging information — and even schedule a trial. Each of Smith’s actions only reinforced the perception that he was trying to influence the election. He became a prosecutor consumed by his antagonism toward Trump and his unchecked power.
Nothing was sacred to Smith. His demands in the courts’ investigation include a full-scale attack on the principles of freedom of expression.
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Ultimately, these records are an indictment not only against Jack Smith, but also against former Attorney General Merrick Garland, who failed to exercise his authority to oversee Smith and protect core constitutional values.
It is essential that Congress and the Trump Administration fully investigate Smith’s surveillance claims. Smith has long demanded responsibility for others while avoiding responsibility for his own actions.
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If past orders are any indication, Patel and Wiles’ orders were likely based on sweeping generalities and demands for absolute confidentiality. That’s Jack Smith’s signature. Smith appears to have repeated his increasingly infamous record, with the collapse of two high-profile cases and lingering questions about his judgment and actions.
He has once again given in to his temptations – and the public has paid the price.
