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Litman: Trump's election ended Jack Smith's tenure. But he still has one more important job to do

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Litman: Trump's election ended Jack Smith's tenure. But he still has one more important job to do

In George Orwell’s classic depiction of an authoritarian society, “Nineteen Eighty-four,” a key component of political control is the state’s erasure of history: “Every record has been destroyed or falsified, every book has been rewritten … every date has been altered. … After the thing is done, no evidence ever remains.”

That is the state of affairs Donald Trump would like to produce with respect to the federal cases against him, which special counsel Jack Smith has developed in painstaking detail over the last two years.

Given Trump’s impending return to the White House, Smith now has two months to wrap up his cases. The primary question left for him and the Justice Department’s leadership is whether to produce a report of the Jan. 6 and classified documents cases and, if so, what it should look like.

The special counsel regulations that govern Smith require him to provide a confidential report to Atty. Gen. Merrick Garland explaining his decisions for or against prosecution. Garland has already made it clear that if he gets a report from Smith, he will exercise his discretion to make it public.

Given what Smith and other prosecutors have described as the “unprecedented circumstances” of the defendant’s election, the regulatory prescription is an imperfect fit. Smith obviously decided to bring charges against Trump in both cases and likely prepared a prosecution memo at the time explaining his thinking to Garland and others. But political events force him to close up shop in the midst of those prosecutions.

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So what considerations should guide his and the department’s thinking about the preparation and content of a report?

First and foremost, the public interest dictates that we have the fullest possible historical account of what happened, which is a recognized justification for special counsel reports. Special counsel Robert S. Mueller III, for instance, declined to charge then-President Trump but provided a detailed and damning account of his findings that ultimately became public.

Smith has developed extensive evidence of truly grievous crimes, the worst ever allegedly committed by a president. The core of the Jan. 6 case is a breathtaking effort to exhort supporters to commit an insurrection and prevent the peaceful transfer of power, the sine qua non of a democracy. And the classified documents case presents probably the gravest violation of national security by a president, augmented by an extended and brazen campaign of obstruction of justice to impede the return of government property that Trump had no right to possess.

In my mind, the need for a detailed report on the latter is greater. The House Jan. 6 committee developed a detailed public record of the plot that culminated in the insurrection. Moreover, the Justice Department’s filings in the Jan. 6 case, especially its lengthy brief explaining the evidence it intended to present and why it was not foreclosed by the Supreme Court immunity decision, also left the public with a detailed account of Trump’s conduct.

No such public account exists in the documents case. That’s because U.S. District Judge Aileen Cannon has made a series of dubious rulings that have disrupted the department’s presentation. One of them, dismissing the case on the fringe theory that Smith was not properly appointed as special counsel, is pending before the U.S. 11th Circuit Court of Appeals.

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The holes in the historical account are significant. What was Trump’s purported justification for spiriting the documents away to his Florida estate, Mar-a-Lago? How did he store them? Could they have been seen by foreign adversaries? Did he in fact show them to anyone, as the evidence that has become public suggests? And how did he and his co-defendants, Mar-a-Lago staff members Carlos De Oliveira and Walt Nauta, conspire to resist the government’s lawful demands to return the documents?

Trump and his circle are already adopting the stance that the election provided a decisive mandate for nullifying the prosecutions. We can be certain that when he takes the reins of government, he will have no compunction about destroying every last shred of information about them. In the style of Orwell’s Big Brother, he will likely try to scrub the pages of history of his misdeeds.

That would be a travesty and a rank disservice to the American people and history.

Trump’s argument for popular nullification doesn’t hold water in the first place. Far short of securing some decisive mandate, Trump appears to have received less than 50% of the vote, edging out Vice President Kamala Harris by one of the smallest popular-vote margins in history. Moreover, there is scant evidence that his winning coalition was moved by objections to the cases against him.

Not that it would matter if they were. History is not a plebiscite in which 50% of the current population decides what’s true and important. An accurate historical account is an independent value of a free society. That’s especially true in cases of heated disagreement about what happened. From that vantage point, it would be in the interest even of Trump and his co-defendants to have a full public record available.

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One strong case for the importance of an accurate historical record of contentious, searing events was offered by the 9/11 Commission. The report it produced, as the commission noted, was essential for historical understanding, preventing the spread of misinformation, reforming national security and readiness, and maintaining public confidence in government.

All of these goals should be articles of faith in a democratic society. But it seems increasingly clear that this is not the sort of society Trump intends to foster. If he gets his way, history’s record of his crimes will be replaced by blank pages.

Harry Litman is the host of the “Talking Feds” podcast and the “Talking San Diego” speaker series. @harrylitman

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Trump stirs GOP primary drama with visit to Massie’s Kentucky home turf

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Trump stirs GOP primary drama with visit to Massie’s Kentucky home turf

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President Donald Trump is taking his feud with Rep. Thomas Massie, R-Ky., to the libertarian lawmaker’s home turf on Wednesday.

Trump is expected to hold an event in Hebron, Kentucky, on Wednesday, the Republican Party of Kentucky announced on social media Monday. It’s located in the northern part of the state’s 4th Congressional District, which Massie represents.

Massie’s primary rival, Ed Gallrein, will attend the Hebron event, his campaign confirmed to Fox News Digital on Tuesday, while deferring all other questions on the matter to the White House.

Massie himself will miss the event due to a previously scheduled official engagement, his spokesperson told Fox News Digital.

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KHANNA AND MASSIE THREATEN TO FORCE A VOTE ON IRAN AS PROSPECT OF US ATTACK LOOMS

President Donald Trump will be visiting Rep. Thomas Massie’s congressional district on Wednesday. (Win McNamee/Getty Images; Nathan Posner/Anadolu via Getty Images)

When asked about the visit, White House spokeswoman Liz Huston told Fox News Digital, “President Trump will visit the great states of Ohio and Kentucky on Wednesday to tout his economic victories and detail his Administration’s aggressive, ongoing efforts to lower prices and make America more affordable.”

The president has thrown his considerable influence behind Gallrein to unseat Massie after the GOP lawmaker publicly defied Trump on multiple occasions.

MASSIE, KHANNA TO VISIT DOJ TO REVIEW UNREDACTED EPSTEIN FILES

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Massie most recently was one of two House Republicans to vote to stop Trump’s joint operation in Iran with Israel, though the legislation was successfully blocked by the majority of GOP lawmakers and a handful of Democrats.

Ed Gallrein, left, seen with President Donald Trump in the Oval Office at the White House. (Ed Gallrein congressional campaign)

He was also one of two Republicans to vote against Trump’s “big, beautiful bill” last year.

Trump in turn has hurled a slew of personal attacks against Massie, including calling him “weak and pathetic” in a statement endorsing Gallrein in October.

“He only votes against the Republican Party, making life very easy for the Radical Left. Unlike ‘lightweight’ Massie, a totally ineffective LOSER who has failed us so badly, CAPTAIN ED GALLREIN IS A WINNER WHO WILL NOT LET YOU DOWN,” Trump posted on Truth Social at the time, one of numerous criticisms targeting the Kentucky Republican through the years.

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He called Massie the “worst Republican congressman” in July amid Massie’s bipartisan push to force the Department of Justice (DOJ) to release its files on Jeffrey Epstein.

Then-Rep. Marjorie Taylor Greene, a Republican from Georgia, Rep. Thomas Massie, a Republican from Kentucky, and Rep. Ro Khanna, a Democrat from California, during a news conference outside the U.S. Capitol in Washington, D.C., on Tuesday, Nov. 18, 2025. (Graeme Sloan/Bloomberg via Getty Images)

But Massie has so far appeared to defy political gravity despite making political enemies out of both Trump and House GOP leaders.

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He handily defeated multiple primary challengers in 2024 and 2022, despite public feuds with Trump, and has served his district since 2012.

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Gallrein is a retired Navy SEAL and farmer who launched his campaign days after Trump made his endorsement. Their primary election day is May 19.

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California Democrats launch pricey polling effort to winnow crowded gubernatorial field

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California Democrats launch pricey polling effort to winnow crowded gubernatorial field

As anxiety mounts among California Democrats about the potential of a Republican being elected governor, the state party will spend hundreds of thousands of dollars on polling to assess the viability of the sprawling field of candidates hoping to replace termed-out Gov. Gavin Newsom, according to plans released Tuesday.

The move comes after nearly every Democratic candidate refused party leaders’ call last week to withdraw from the race to avoid splitting the vote in the June primary — an outcome that could lead to a Republican being elected to statewide office for the first time in two decades.

“Candidates have filed, and now they’ve got the opportunity to showcase their viability, their path to win. I want to simply ensure that everybody has information to fully understand the current state of the race,” said Rusty Hicks, the leader of the California Democratic Party.

As campaign season ramps up, the series of six polls will allow “candidates, supporters, the media, voters, anyone and everyone to have a clear understanding of what is or is not happening in this particular race,” he said.

The filing deadline to appear on the June 2 ballot was Friday. Three days earlier, Hicks released an open letter urging candidates who did not have a path to victory to withdraw from the race. Of the nine prominent Democrats who had announced runs for governor, only one heeded his call: former state Assembly Majority Leader Ian Calderon.

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That means the eight other candidates’ names will appear on the ballot, regardless of whether they decide to later drop out. And that creates the possibility of a Republican winning the race because of how California elections are decided.

The state has a voter-approved top-two primary system, under which the two candidates who receive the most votes in the June primary advance to the November general election, regardless of party.

Two prominent Republicans will appear on the ballot: former conservative commentator Steve Hilton and Riverside County Sheriff Chad Bianco. Even though Democratic voters outnumber Republicans nearly 2 to 1, and the state’s electorate last elevated Republicans to statewide office in 2006, it is mathematically possible for Democrats to splinter the vote, allowing the two GOP candidates to advance.

Under such a scenario, not only would Republicans be guaranteed the leadership of the nation’s most-populous state, but Democratic voter turnout also would probably be depressed in November, potentially affecting down-ballot races such as those that could determine control of Congress.

Hicks’ call last week prompted concerns among candidates of color, including former U.S. Health and Human Services Secretary Xavier Becerra and state Supt. of Public Instruction Tony Thurmond, that the effort was aimed at every nonwhite candidate in the race.

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The state party chairman responded that his letter was not aimed at any specific candidate.

“It’s not something I lose sleep over,” Hicks said when asked about the racial claims. But he added that the voter surveys will be conducted by Los Angeles-based Evitarus, the state’s only Black- and Latino-led full-service polling firm, and will oversample historically underrepresented communities: Latino, Black and Asian American voters.

Hicks said the polling will cost “multiple six figures” but did not specify the exact amount.

The first poll will be released on March 24, and then five additional surveys will come out every seven to 10 days until voters start receiving mail ballots in early May.

“We’re putting this forward to ensure everyone is armed with the information they need to clearly have an eyes-wide-open assessment of where the state of the race currently is between now and when ballots land in the mailboxes of voters,” Hicks said.

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Trump reveals top issues GOP should focus on to secure midterms victory: ‘I’ve never been more confident’

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Trump reveals top issues GOP should focus on to secure midterms victory: ‘I’ve never been more confident’

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President Donald Trump outlined five key items he believes will tip the upcoming midterm elections in the GOP’s favor — if Republicans can muscle them through Congress.

“No transgender mutilation surgery for our children,” Trump told an audience at the Republican Members’ Issues Conference. “Voter ID, citizenship [verification], mail-in ballots, we don’t want men playing in women’s sports.”

It’s the best of Trump. Those are the best of Trump. This is the number one priority, it should be, for the House,” Trump said.

Trump’s exhortations to Republican lawmakers come as the GOP wages an uphill campaign to hang on to a controlling majority in the House of Representatives and the U.S. Senate. He framed his legislative priorities as a way for Republicans to capitalize on popular demands within the GOP base that would increase their chances of preserving a Republican governing trifecta.

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President Donald Trump gestures as he boards Air Force One before departing Palm Beach International Airport in West Palm Beach, Florida, on March 1, 2026. (Mandel Ngan / AFP via Getty Images)

HOUSE REPUBLICANS PUSH ELECTION OVERHAUL WITH VOTER ID, MAIL-IN BALLOT CHANGES AHEAD OF MIDTERMS

Currently, Republicans hold just four more seats than Democrats in the House of Representatives.

The GOP holds six more than Democrats in the Senate.

To keep the numbers in their favor, Republicans will need to beat historical trends. In the vast majority of past cases, parties that capture the White House in presidential elections face blowback in the midterms. Notably, the last time a majority party gained seats in both chambers of Congress in the midterms came under the Bush administration in 2002, following devastating attacks on the World Trade Center.

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House Speaker Mike Johnson, R-Louisiana, left, and President Donald Trump shake hands during an Invest America roundtable in the State Dining Room of the White House in Washington, District of Columbia, on June 9, 2025. (Yuri Gripas/Abaca/Bloomberg via Getty Images)

REPUBLICANS, TRUMP RUN INTO SENATE ROADBLOCK ON VOTER ID BILL

Trump said he believes Republicans have a shot at bucking the trend come November if they focus on his list.

“It’ll guarantee the midterms,” Trump said of his legislative priorities.

Republicans have already taken strikes towards two of them through the SAVE America Act, a piece of legislation that would require proof of citizenship to register to vote and cast a ballot. That bill cleared the House last month for a second time in the 119th Congress.

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Its future is uncertain in the Senate, where Republicans would need the assistance of seven Democrats to overcome the 60-vote threshold to defeat a filibuster. Democrats, for their part, believe the legislation would disenfranchise voters who cannot readily provide documented proof of citizenship through a passport, REAL ID, or birth certificate. 

Senate Majority Leader John Thune, R-S.D. has promised a vote on the package despite its long odds. 

Sen. Mike Lee, R-Utah, talks with a guest during a “Only Citizens Vote Bus Tour” rally in Upper Senate Park to urge Congress to pass the Safeguard American Voter Eligibility (SAVE) Act on Wednesday, Sept. 10, 2025. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

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Several members have introduced bills on transgender issues, although none of them have cleared either chamber.

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I’ve never been more confident that if we keep these promises and deliver on this popular agenda, the American people will stand with us in overwhelming numbers, just as they did in 2024,” Trump said.

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