Special Counsel Jack Smith's 37-count indictment of former President Donald Trump reads with "a lot of fury" but lacks key elements of typical document-mishandling cases, the former chief of staff in Ronald Reagan's Justice Department said Friday.
Mark Levin, host of "Life, Liberty & Levin" and the top staffer for then-Attorney General Edwin Meese III, said Smith's criminal indictment lacks evidence Trump destroyed or substantively mishandled classified information.
Levin said the former Kosovo War crimes prosecutor who led the Obama Justice Department's Public Integrity Section for a time, has a history of overprosecuting certain cases.
He pointed to the DOJ under Smith's tenure convicting then-Virginia Republican Gov. Bob McDonnell of honest services fraud and illegally accepting gifts, before a higher bench stepped in.
The U.S. Supreme Court however, later essentially rebuked the prosecution, ruling unanimously to vacate McDonnell's conviction, citing the use of an overbroad definition of "official act."
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Chief Justice John Roberts agreed with McDonnell that the jury instruction of "official acts" at his trial was so broad it could include virtually any action a public official might take while in office, leaving politicians across the country subject to the whims of prosecutors. The court however, took no official stance on whether McDonnell could be retried with a properly-adjusted prosecutorial scope.
Smith also saw the campaign finance prosecution of former Democratic presidential candidate then-North Carolina Sen. John Edwards declared a mistrial, Levin noted.
The New York Times at the time called it a high-profile example of several "visible efforts" by Smith's DOJ section, listing other investigations where charges were unsuccessful or not brought including against then-Sen. John Ensign, R-Nev., former House Majority Leader Tom DeLay, R-Texas, the late Rep. Don Young, R-Alaska, and ex-Rep. Allan Mollohan, D-W.V.
"This guy Smith has a record," Levin said. "Going after the former governor of Virginia – and then he's rebuked by the Supreme Court 8-0. One of the few cases where they all got together – [he] ruined [McDonnell's] career."
"And he does the same to John Edwards in North Carolina – where the jury turned against him – because he's known for taking laws and pushing the boundaries as far as he can," Levin went on.
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"And that's exactly what he did here with these pile-on charges, going behind attorney client privilege and on and on and on."
Other legal experts like Bush Deputy Assistant Attorney General John Yoo pointed out the indictment ignores "serious Constitutional" concerns like separation-of-powers and presidential powers.
Reacting to Smith's brief public statement moments prior, Yoo said one might think the Justice Department arrested a Pentagon staffer who stole documents and brought them home, not a former president with much greater legally-prescribed powers.
"This is the first time that we have ever indicted for a federal crime, not just a former president, but the leading candidate of one of the major political parties in the upcoming campaign. It doesn't mention who's responsible for this decision," Yoo said.
"Under the Constitution, you can't just say, ‘oh, the special counsel made the decision’," he said, adding President Biden is Constitutionally-speaking the individual responsible for making such decisions. Biden, he noted, is the now-defendant's chief political opponent, which is a "serious issue."
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Levin told "The Story" that, if Trump committed a great offense like actually destroying or altering classified documents, Smith would have led his indictment with such allegations.
"We have boxes [that] were moved – OK. So what happened with the boxes? We have people were told maybe they would consider, according to the indictment, you know, he signaled to me to get rid of them. Nothing was gotten rid of."
Levin remarked Smith must have been "desperate" to find proof that Trump ultimately intended to destroy the documents, which opens the door for the former president's defense team to point out they didn't shred anything and were instead trying to negotiate with the National Archives.
"The man lives in two places, so he brought boxes with him," Levin said, as Trump maintains a main residence now in Palm Beach County, Fla., which has left his longtime home of Trump Tower in Midtown Manhattan secondary.
By contrast, Levin said, Hillary Clinton was found to have destroyed 30,000 sensitive or classified documents and remains unindicted – after then-FBI Director James Comey declined to recommend them.
"They destroyed cell phones with hammers. There was no warrant. There was no SWAT team. She had a private server in her home. She lied, arguing it wasn't classified information. They found classified information. How is the Department of Justice going to argue that it's a special government position in 2012 was that they can't bring charges against Hillary Clinton? And their official position today is, oh, we've got false statements, we've got conspiracy to obstruct…"
Levin added that Smith's indictment will do lasting damage to the Republic, in that an incumbent president has essentially succeeded in punishing his successor and chief rival.
He said that, if his former boss, Meese under President Reagan, had considered preceding President Jimmy Carter to have committed untoward acts, he wouldn't have actively sought indictment, but offered the Georgia Democrat a way to comply.
"[Meese] would have picked up the phone and called [and said], Jimmy. Give us the materials now. Don't make me send these people in and so forth."
On "The Five," Judge Jeanine Pirro – a former county prosecutor in White Plains, N.Y., for many years – said Smith should indeed be embarrassed by failures of the prosecution in the McDonnell and Edwards cases:
"What you've got is a loser prosecutor: Jack Smith, whose been slapped down by the U.S. Supreme Court," she said. "If I were a lawyer, I would give up my law license… hiding under a rock."
The Associated Press contributed to this report.
