By: Donald V. Watkins
Copyrighted and Published on November 25, 2022
An Editorial Opinion
Most people have probably never heard of James M. Cole, Lanny A. Breuer, or Jack Smith. This is the trio that former U.S. Attorney General Eric Holder (2009 to 2015) selected to run the Criminal Division of the U.S. Department of Justice during President Barack Obama's
Cole was Deputy Attorney General (2010 to 2015). Breuer served as Assistant Attorney General for the Criminal Division (2009 to 2013). Jack Smith served as the chief of the Department of Justice’s Office of Public Integrity (2010 to 2015), which investigates and prosecutes public figures on corruption cases.
Smith was hired for his Office of Public Integrity job by Lanny Breuer, a political operative who also worked as a special counsel from 1997 to 1999 in the Office of White House Counsel under President Bill Clinton. Breuer defended Clinton in various matters, including: (a) Congressional and Department of Justice investigations of the Clinton campaign's fundraising, (b) independent counsel Ken Starr's investigation into Clinton’s sexcapades with Monica Lewinsky, and (c) the impeachment proceedings against Clinton.
On November 18, 2022, U.S. Attorney General Merrick Garland announced the appointment of Jack Smith as the Special Counsel who will oversee the criminal investigations into the retention of national defense information at former President Donald Trump’s Mar-a-Lago estate and parts of the January 6, 2021, insurrection.
A deep dive into Jack Smith’s past reveals that he is too flawed for this high-profile assignment and must step aside in the Trump case. This assessment is provided by a political Independent and trained legal expert who did not support Donald Trump's candidacy for president in 2016 and does not support it today.
U.S. v. Milton McGregor, et. al.
Lanny Breuer and Jack Smith botched the June to August 2011 criminal trial and January to March 2012 retrial in the high-profile case of U.S. v. Milton McGregor, et. al., Cr. No. 2:10-cr-186-MHT (M.D. Ala).
On October 4, 2010, Breuer announced that the defendants in the McGregor case had been charged in a 39-count indictment with committing 138 federal felony offenses, including conspiracy, federal program bribery, extortion, money laundering, honest services mail and wire fraud, obstruction of justice, and making a false statement. Breuer said the defendants engaged in a conspiracy to bribe Alabama state legislators for their votes and influence on proposed gaming legislation.
The defendants pleaded not guilty and demanded a trial by jury.
The Brenda K. Morris Factor
Breuer and Smith assigned Brenda K. Morris, a prosecutor in the Office of Public Integrity, as the Senior Litigation Counsel in the McGregor case. Ms. Morris was one of several Department of Justice prosecutors who hid evidence favorable to the defense of Alaska U.S. Senator Ted Stevens after he was indicted in 2008 on public corruption charges. This prosecutorial misconduct enabled prosecutors to obtain a conviction against Stevens.
On March 28, 2012, the Department formally acknowledged Ms. Morris’ prosecutorial misconduct in a Statement to the U.S. Senate Judiciary Committee and dismissed the case against him.
Top officials in the Department, including Breuer and Smith, knew about Ms. Morris’ prosecutorial misconduct because the trial judge in Stevens case published a highly-critical opinion about this matter on January 16, 2009. This cloud of prosecutorial misconduct and the tainted conviction it produced in Stevens' case hung over Jack Smith and his Office of Public Integrity until the Department came clean with Congress in its March 28, 2012 statement.
Despite Ms. Morris’ judicially determined prosecutorial misconduct in the Stevens case, Breuer and Smith saw fit to assign her to the prosecution team that investigated, indicted, and prosecuted McGregor and the other defendants in his case.
On April 22, 2011, Ms. Morris and her prosecution team secured guilty pleas from two of the defendants – Ronald Gilley and Jarrod Massey. The tactics they used to secure the guilty pleas were highly questionable. Afterwards, Gilley and Massey became cooperating government witnesses, along with Jennifer Pouncey, a lobbyist who had previously pleaded guilty to one-count of conspiracy in a related Bill of Information.
The First McGregor Trial was Entirely Unsuccessful
Milton McGregor and the remaining eight defendants stood trial from June to August 2011 before Judge Myron Thompson, an experienced U.S. District Judge in Montgomery, Alabama. When the trial concluded in August 2011, not a single conviction was reached on any of the 138 felonies charged.
During the trial, Judge Thompson granted judgments of acquittal on 14 counts involving McGregor and two other defendants.
The jury rendered not-guilty verdicts on 91 charges, including a complete exoneration of two defendants, and not-guilty verdicts on some charges for all remaining seven defendants.
The jury failed to reach a verdict on the remaining 33 charges, which represented less than one quarter of the charges that had gone to trial.
Eight of the 12 jurors were for acquittal on all 138 counts, and the vote was eleven to one in favor of acquittal on one count. The jury verdicts were unanimous in favor of acquittal on 91 charges.
Jack Smith and His Superiors were Forewarned that His Team of Prosecutors Could Not Win a Retrial
Jack Smith, Lanny Breuer, and James Cole were expressly forewarned in writing that their prosecution team had no credibility and a zero chance of winning a retrial. This warning was set forth in multiple emails I sent to Smith, Breuer, and Cole prior to and after an in-person meeting I had on January 11, 2012 with Jack Smith and his chief deputy in Washington.
A highly respected former state attorney general (from 1997 to 2011) accompanied me to the meeting. This top prosecutor also shared his view that the multitude of structural weaknesses in the government's case would prevent Smith's team from winning a retrial.
Prior to this meeting, I provided Smith, Breuer, and Cole with a legal memo, dated October 28, 2011, that detailed the reasons why prosecutors would lose the scheduled retrial. Before I sent my memo to Smith and his superiors, I had it reviewed by a well-known former U.S. Attorney whose objective qualifications as a federal prosecutor far exceeded Smith's and anybody on his prosecution team.
Smith and his superiors did not care about the Department's non-existent chances of winning a retrial. They had access to unlimited amounts of taxpayer money and they could spend it as they saw fit. Smith merely changed prosecutors and instructed his new prosecution team to proceed with the scheduled January 30, 2012 retrial.
Smith’s decision in this regard violated a core standard of professional conduct for federal prosecutors. Section 9.27-220 of the applicable U.S. Attorney’s Manual required prosecutors to answer this basic question before seeking an indictment or a retrial: Whether “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”
On March 7, 2012, Jack Smith and his prosecutors lost on all 33 of the remaining felonies charged against the six defendants who were retried. This decisive outcome ended the case.
Sadly, Ray Crosby, one of the seven remaining defendants in the retrial, died of heart failure caused by the emotional stress from the entire ordeal just as jury selection had gotten underway. Neither Jack Smith, nor any member of his prosecution team member, was ever held accountable for Crosby's unfortunate death.
Jack Smith Embraced Flaming Racists as Instigators and Government Witnesses
While pursuing the public corruption case against McGregor and the other defendants, Jack Smith (and Lanny Breuer) knowingly embraced two flaming racists – Alabama state Sen. Scott Beason and state Representative Ben Lewis -- as instigators of the underlying FBI investigation and as cooperating government witnesses.
Here is what Judge Thompson wrote about Beason and Lewis in an Order, dated October 20, 2011:
“The court finds that Beason and Lewis lack credibility for two reasons. First, their motive for cooperating with F.B.I. investigators was not to clean up corruption but to increase Republican political fortunes by reducing African-American voter turnout. Second, they lack credibility because the record establishes their purposeful, racist intent.” (Doc. 1916, p. 9). Thompson also wrote: “The evidence indicates that Beason and Lewis sought to inculpate the defendants primarily to neutralize a potential political threat.” (Doc. 1916, p. 12). Finally, Thompson stated: “Beason’s and Lewis’s statements demonstrate a deep-seated racial animus and a desire to suppress black votes by manipulating what issues appeared on the 2010 ballot.” (Doc. 1916, p. 13).
Despite these explicit judicial findings, Jack Smith and his cabal of federal prosecutors proceeded to publicly align themselves with Beason and Lewis in the pursuit of a clearly established racist and political agenda in Alabama.
On January 21, 2012, I wrote Smith an email that stated as follows:
“While gift-wrapped in lofty anti-public corruption language, the continued prosecution of Mr. McGregor is actually doing more harm than good in Alabama ….
We cannot allow the Scott Beasons of Alabama to win this critical battle. Too many people of interracial goodwill paid too high a price for us to achieve our voting rights in Alabama. We cannot allow this evil to prevail as a standard of justice ….
This matter is much larger than Mr. McGregor's personal fate. The battle lines between good and evil have been drawn and are clear to those of us who are children of the struggle for racial equality in the South ….
We cannot allow politically motivated racists like Beason and Lewis, who had the foresight and clout to use the Department as a means to further their racial and political goals, to steal the hopes and dreams of decent, hard-working black Alabamians ….
On a personal note, I never understood the mindset of battleﬁeld commanders who sent their trial troops into battles where they knew these troops would be publicly humiliated and embarrassed. In my 39 years of commanding litigation troops in complex and challenging cases, I never subjected my troops to such a fate ….”.
Despite the fact that the prosecution's case was (a) far from overwhelming and (b) sprang from a racist and partisan vote-suppression effort to manipulate the Department of Justice into becoming an unwitting tool of vote suppression, Jack Smith and his prosecution team proceeded with the retrial.
On March 7, 2012, the jury found Milton McGregor and the other five defendants not guilty of all 33 felony charges.
The defense victories from the first trial and retrial constituted a total repudiation and rejection of Jack Smith, his hand-picked prosecution team, and the overt racist and political agenda they sought to advance in the McGregor case.
On May 31, 2012, I emailed Jack Smith, Lanny Breuer, and James Cole this farewell message:
“Several months ago, I represented Milton McGregor in connection with the DOJ's decision to retry him in its high-proﬁle criminal case in Montgomery, Alabama. At the time, I thought that the retrial decision was made because the DOJ's internal prosecutorial review process was sorely lacking in objectivity. However, after watching the Department's stinging defeat today in the John Edwards case, it is obvious that the real problem within the DOJ's Criminal Division is not a lack of objectivity, but rather a lack of qualiﬁed senior-level case management ....
I privately warned the Department in advance that it could not win the McGregor retrial, but, as case managers with decision-making authority, you decided to plow ahead and waste additional taxpayers' money in what amounted to nothing more than a pathetic exercise in futility. You have compounded the detrimental effects of the embarrassing McGregor defeat by unsuccessfully prosecuting John Edwards for committing adultery ….”.
Against this backdrop, Jack Smith should immediately step down from his November 18, 2022 appointment as Special Counsel in the Trump investigation. Smith is too flawed for this important prosecutorial assignment in a politically-divided America.
Simply put, Jack Smith lacks the prosecutorial judgment, objectivity, case management skills, and credibility necessary to properly assess a high-profile criminal case like Trump's. Smith has shown himself to be incapable of basing his prosecutorial decisions solely on the facts and admissible evidence in such a case.
Smith is capable of destroying innocent lives without blinking an eye. Based upon what I witnessed in McGregor's case, this is his only area of expertise.
As a political Independent, a trained legal expert who has won numerous landmark criminal cases, and a non-Trump supporter, I believe America deserves someone more qualified than Jack Smith to serve as Special Counsel in Trump's case. At this juncture, the publicly available evidence makes it clear that Trump's conduct warrants a criminal investigation. However, Smith's soiled reputation and sordid history as the former head of the Office of Public Integrity makes him unfit for the job.