Republicans are whining about the timing of Jack Smith’s release of his brief on Donald Trump's election interference case. After all, the election is only one month away. Do these hypocrites recall cheering for James Comey and his last-minute investigation of Hillary Clinton in 2016?
Both are two high-profile moments in U.S. political history where legal proceedings intersected with presidential elections. Comey’s actions had significant political implications—they helped put Donald Trump in the White House and ushered in the era of chaos and division we are now experiencing.
Jack Smith’s Brief on Trump’s Election Interference Case
The Special Counsel overseeing the Department of Justice's investigations into Donald Trump, had to release a new, streamlined brief because of the Supreme Court’s ruling that Trump enjoyed presidential immunity while in office. Smith must demonstrate that Trump’s actions were those of a criminal private citizen candidate, not a president.
Sounds good to me; what president would behave in such a manner? That’s why the Supreme Court’s ruling was so offensive. Aside from Trump, and maybe Nixon, what president has ever needed immunity?
Smith’s election interference case is part of a broader effort to hold Trump accountable for his alleged role in attempting to overturn the results of the 2020 presidential election, which culminated in the January 6th attack on the U.S. Capitol.
Smith's brief accuses Trump of engaging in a multi-pronged effort to subvert the democratic process. The charges center around claims of illegal efforts to pressure state officials to alter vote counts, advancing false claims of widespread voter fraud, and organizing fake electors to replace legitimate electors. Smith has argued that Trump’s actions constitute an unprecedented attack on the democratic system, emphasizing the need to hold him accountable.
The timing of the release is notable, coming a month before the 2024 presidential election. But what choice did Smith have if he wants to hold Trump accountable? Smith has repeatedly asserted that the brief and the investigation are driven by legal principles, not politics. Naturally, Republicans would rather blame the timing of Smith’s release rather than their criminal candidate.
The brief’s release is a necessary step in a legal process stalled because of the actions of a famous defendant and his lawyers. The delays that have brought us to this moment, 30 days from election day, were caused by Trump and his legal team. Seeking immunity from the Supreme Court for a criminal president was only one delay tactic. There were many others.
While redacted, the brief lays out the case in stark terms, positioning Trump’s actions as an existential threat to democracy. Trump insists the charges are politically motivated, as if we shouldn’t believe our own eyes and ears. Yes, there are political and (thanks to the Supreme Court) legal complexities surrounding the case. Though most citizens view the case through a partisan lens, which obscures the fact that the case is legally and factually meritorious.
Comey’s Investigation of Clinton in 2016
You may recall that James Comey, the former FBI Director, announced the reopening of his retired investigation into Hillary Clinton’s private email server 11 days before the 2016 presidential election. In July 2016, Comey had cleared Clinton of any criminal wrongdoing, though he publicly criticized her use of the private server for her work as Secretary of State as “extremely careless.” Unlike Trump, she was never indicted and was not a convicted felon.
Comey’s late October announcement reignited the issue and had a profound impact on public discourse, fueling Republican claims that Clinton was untrustworthy and unfit for office. The announcement dominated the news cycle and shifted focus away from Donald Trump’s controversies, including his behavior toward women and the release of the "Access Hollywood" tape.
And, of course, the “new” investigation concluded without charges a mere two days before the election. The damage to Clinton's campaign was already done. Political analysts believe Comey’s announcement contributed to her loss, as polls showed reduced support for Clinton in its immediate aftermath. Comey overstepped, interfered in the election, and violated the principle of non-intervention in ongoing political processes, particularly so close to the election.
Comparing the Two Incidents
While both Smith and Comey found themselves at the center of politically charged investigations, their actions and the cases they pursued differ in several ways.
1. Nature of the Cases: The subject matter of the investigations is fundamentally different. Smith's brief targets Donald Trump for alleged efforts to overturn the results of a democratic election, which goes to the heart of the integrity of the electoral system itself. In contrast, Comey's investigation of Clinton focused on her use of a private email server—a case centered around issues of information security and classified materials, rather than a direct attempt to interfere with the electoral process.
2. Timing and Political Impact: Timing is crucial in both cases, but the political contexts differ significantly. Comey’s investigation came at a critical moment in the 2016 election, and his decision to reopen it was widely seen as influencing voter perceptions right before Election Day. In Smith’s case, while Trump is a candidate for the 2024 election, the charges relate to actions taken in the aftermath of the 2020 election. Smith’s brief does not directly relate to the ongoing election but rather to Trump’s previous conduct, though the timing is still politically sensitive due to Trump’s candidacy.
3. Perception of Intent: Comey faced criticism for the appearance of political interference, as his decision to publicly announce the reopening of the Clinton investigation seemed to sway public opinion during a closely contested election. Smith, on the other hand, has made a concerted effort to emphasize the non-political nature of his investigation, focusing on legal accountability for actions already taken, rather than on influencing the outcome of an election. Trump's supporters claim that the legal proceedings are an attempt to derail his 2024 campaign even though his own legal strategy created the delays that have brought us to this moment.
4. Legal vs. Public Accountability: Smith’s brief addresses Trump’s potential legal liability for actions that could undermine democratic processes, placing a focus on legal and constitutional principles. Comey’s investigation, while serious, did not rise to the same level of constitutional crisis, and its primary impact was on public opinion rather than legal accountability.
James Comey’s actions had significant political repercussions—it remains to be seen whether Smith’s will have any effect at all. Trump’s multiple attempts to overturn the election results were despicable and criminal, and he should be held to account for them. Clinton’s activity was somewhat like, but far less careless than Trump’s classified documents case.
The nature and context of the two cases at issue differ considerably. Smith’s case is a legal proceeding targeting Trump’s corrupt conduct that threatened democratic institutions. Comey’s decision to reopen his closed investigation, a decision that ended with no charges filed, could have waited until after the election. Instead, Comey fueled a political firestorm and helped give us the worst president in modern history, a man who continues to threaten our democracy.
Mark M. Bello is an attorney and author of the Zachary Blake Legal Thriller Series and children’s social justice/safety picture books. He also hosts the popular bi-weekly podcast, Justice Counts (https://www.spreaker.com/show/justice-counts_1). Mark’s books may be found at all online booksellers and on his website, at https://www.markmbello.com.
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