Jack Smith’s Tortured History With Republicans in Congress
With former President Donald Trump facing a daunting case over his handling and hoarding of classified documents, Republicans in Congress have set their sights on special prosecutor Jack Smith. But for some of these Republicans, Smith isn’t exactly an unfamiliar target.
About a decade ago, Republicans went after the IRS over its scrutiny of Tea Party groups and their charity status. And while Republicans mostly went after Lois Lerner, an IRS official during the Obama administration, the IRS scandal actually had its origins in the offices of an elite team at Department of Justice headquarters—the “public integrity section.”
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At PIN, as it’s called, experienced federal lawyers investigate politicians and government officials all over the country. When they’re not filing criminal charges in court, they’re advising law enforcement on sensitive investigations. Their job is to root out corruption and keep America clean. And that was where Smith entered the picture, on the eve of a serious shakeup.
After a string of successful high-profile takedowns during the Bush administration, the public integrity team’s own reputation was sullied in 2009 when prosecutors were caught intentionally hiding exculpatory evidence from Sen. Ted Stevens, who was the longest-serving Republican in Senate history before prosecutors tanked his political career. (His tattered reputation was in recovery mode when he died in a plane crash.)
To clean up the cleaners, the DOJ in March 2010 appointed a 41-year-old New York prosecutor with an impeccable résumé, a man who cut his teeth in the crime-ridden streets of the 1990s: Jack Smith.
The fitness-obsessed, well-respected prosecutor was only on the job a few months when he started noticing a disturbing trend: dirty, untraceable money flooding its way into domestic politics like never before. These were the repercussions of the Supreme Court’s historic Citizens United decision, which had given corporations a free pass to spend luxuriously on politics—with some degree of anonymity.
What follows are details gleaned from a number of congressional staffers, some of whom were Republican-aligned investigators that abhorred what Smith was about to do next. The account is bolstered by interviews with half a dozen of Smith’s former colleagues over the years.
On Tuesday, Sept. 21, 2010, Smith emailed his deputies about a news story he’d just read in The New York Times that documented how “social welfare” organizations—like Crossroads Grassroots Policy Strategies and Americans for Prosperity—had gamed the rules and become the top spenders on Senate and House races respectively, pouring gobloads of money into Republican campaigns. Labor unions were doing the same with Democrats but, by contrast, they were actually opposed to the way the recent Supreme Court decision had supercharged corporate dark money spending in politics. Smith was taken aback by the way nonprofits, formed as tax-exempt groups under the IRS code, were abusing the system with unchecked spending and secret donors.
“This seems egregious to me,” Smith wrote to his top prosecutors on the team. “Could we ever charge a 371 conspiracy to violate laws of the USA for misuse of such non profits to get around existing campaign finance laws + limits? I know 501s are legal but if they are knowingly using them beyond what they are allowed to use them for (and we could prove that factually)?”
Smith wanted to know if the DOJ could crack down on these groups by charging them with conspiracy to defraud the United States government. After all, IRS rules dictate that a 501(c)(4) group is supposed to be dedicated to promoting social welfare, furthering what the agency calls “the common good and general welfare of the people of the community,” like focusing on civic betterment.
It’s against the rules for a 501(c)(4) organization to spend more than 50 percent of its activities on political work. But in reading that Times article, Smith saw how Crossroads had clearly crossed a line: A bunch of Republican operatives were running the group, former President George W. Bush adviser Karl Rove was helping it raise cash, and it was spending millions to rip into Democrats on TV commercials.
Smith came up with a plan. His public integrity team would meet with Sarah Hall Ingram, a top IRS official, to figure out if his investigative strategy was feasible. But the next day, his top election crimes prosecutor expressed some skepticism.
Richard Pilger, who quite literally wrote the DOJ manual on prosecuting election offenses, pointed out that finding the proverbial “smoking gun” would be next to impossible. Instead, the feds could do what they always do, the same approach they used with mobsters Al Capone and John Gotti—fall back on charging tax crimes.
“It would be good to gear up some enforcement, but very challenging as criminal work in the near term unless there is coordination with campaigns. Absent coordination, the Department’s way in is probably most directly through Tax Division,” Pilger responded.
Nancy L. Simmons, the team’s senior counsel and yet another top-notch expert who co-wrote an earlier version of that election prosecution manual, pushed back too.
‘‘This area has been the subject of much debate and press articles over the past, but I don’t see a viable way to make a prosecutable federal case here,” she replied.
But Smith, whose friends stress has a reputation for being relentless, pushed ahead. He set up meetings to discuss a ‘“possible 501/campaign finance investigation” with teammates including his principal deputy chief, Raymond Husler—who’s now a member of the special counsel team investigating Trump.
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Within days, Smith’s team was already in talks with the IRS director overseeing tax-exempt organizations: Lerner. Internally, the IRS folks discussed the importance of proceeding carefully, given that U.S. laws generally prohibit the government agency from releasing private tax information to law enforcement unless prosecutors are engaged in a tax-related investigation or have a court order.
Ingram warned Lerner she could “walk” prosecutors through the basic rules, but if they need “more than the primer,” then they’d have to “assign carefully to preserve the civil-criminal wall.” Ingram noted the importance of having a technical expert at IRS establish “clear perimeters” to differentiate between sharing publicly available data, like applications by nonprofits seeking to be tax-exempt, and more sensitive snooping, which she called “6103 fishing.”
At one meeting between the DOJ and IRS, Smith’s team noted their concern that some groups were actually just political committees posing as nonprofits, thinking they could dodge Federal Election Commission restrictions. His prosecutors proposed a DOJ-IRS-FEC coalition to start cracking down on the liars. But Lerner—in an episode that often gets overlooked by Republicans—actually expressed reluctance, noting how difficult it would be to prosecute these groups because of confusing terminology and hazy administrative rulings.
By early October, Pilger and Lerner were already discussing how the IRS could give the DOJ and FBI nonprofit filing data. In emails, Lerner directed her staff to compile 990 tax forms—which are public anyway—from nonprofits engaged in political activity for the previous three years.
Importantly, as DOJ brass would later note, the IRS didn’t plan to turn over the protected “Schedule B” section of the 990 form, which lists donors. By the end of that month, the IRS sent 21 DVDs of data to FBI Supervisory Special Agent Brian Fitzpatrick in Washington, D.C.—who would later be elected to Congress as a House Republican—but investigators didn’t do much with the information. According to a DOJ official’s letter to Congress years later, the most agents ever did was look over the index.
“To the best of our knowledge, neither the FBI nor the department used them for any investigative purpose,” then-Principal Deputy Assistant Attorney General Peter J. Kadzik later wrote.
Still, a subsequent IRS review of the information showed that “a small number of the Form 990s on the disks inadvertently include confidential information,” the kind that law enforcement isn’t supposed to get without a court order. (Although by one count, it only made up 33 of the 12,000 forms on those disks.)
It was that information-sharing, however, that congressional Republicans would later rage about at fiery public hearings where they ripped into DOJ and IRS officials, even though a top Justice Department official would eventually testify before Congress that nothing ever came of those DOJ-IRS meetings.
But Smith’s team gave it another go three years later, shortly after DOJ and IRS officials got prodded during a Crime and Terrorism Subcommittee hearing in April 2013 by Sen. Sheldon Whitehouse (D-RI), who asked why they weren’t looking into “very plain-vanilla criminal cases” of political organizations lying on Form 1024 applications for tax-exempt nonprofit status.
One month after the senator made those public comments, Lerner told her IRS colleagues that Smith’s deputy, Pilger, wanted to know “who at IRS the DOJ folks could talk to about Sen. Whitehouse [sic] idea at the hearing that DOJ could piece together false statement cases about applicants who ‘lied’ on their 1024s—saying they weren’t planning on doing political activity, and then turning around and making large visible political expenditures.”
“DOJ is feeling like it needs to respond, but want to talk to the right folks at IRS to see whether there are impediments from our side and what, if any damage this might do to IRS programs,” she wrote.
(Again, nothing came from that either, DOJ officials later said. The IRS didn’t even follow up on Smith’s inquiries.)
But the real damage would come from Lerner herself, who on that very day disclosed something damning at a panel put together by lawyers at the American Bar Association. She revealed—and apologized for—the way IRS employees had apparently spent years screening nonprofit applications that included the words “Tea Party” or “patriots.” Days later, the Treasury Inspector General for Tax Administration issued its scathing report describing the way the IRS had “used inappropriate criteria” to single out conservative groups “based upon their names or policy positions,” grinding their applications to a halt.
TIGTA found that more than half of the 296 applications it reviewed were still on hold, infuriating Republicans in Congress. (Ultimately, not a single application for tax-exempt status was denied.)
At public hearings, Republicans conflated Smith’s initial DOJ review of law enforcement options with the IRS screwup that tied up Tea Party nonprofit applications with red tape. But the two were remarkably different situations. Smith’s team actually failed to take any law enforcement action against rogue nonprofits—while the IRS did manage to screw up.
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But there was one thing that truly pissed off Republicans: the way they belatedly discovered that these DOJ-IRS meetings ever happened.
Rep. Jim Jordan (R-OH)—the same congressman now targeting Smith over the Trump indictment—teamed up with Rep. Darrell Issa (R-CA) to demand that Smith show up for an interview in 2014. He complied exactly a week later and cleared up the mess.
Smith told them the DOJ didn’t place any sort of pressure on the IRS to influence elections, nor did any politician prod the public integrity team into targeting conservative groups for prosecution. Internal emails made clear that Smith was interested in cracking down on the widespread corruption ensuing from the Citizens United decision, but Republicans nevertheless turned the whole ordeal into Fox News political theater.
Summing up his disgust over the entire situation at a July 2014 hearing, Jordan said, “All that cries out for a special prosecutor… if that doesn’t warrant a special prosecutor I don’t know what does.”
Fast-forward nine years and Jordan is once again railing against Smith, demanding that Attorney General Merrick Garland release the details outlining his appointment of Smith as the special counsel investigating Trump’s attempts to stay in power after losing the election and his hoarding of classified documents at Mar-a-Lago.
Rep. Marjorie Taylor Greene (R-GA) has followed up, threatening to introduce a bill that would defund Smith’s office to kneecap the Trump investigations. Meanwhile, Issa—back in Congress after a two-year break between 2019 and 2021—has yet to set his sights on Smith again but has decried a “double standard” in the Trump prosecution and suggested giving him a pass and tightening control of Top Secret records by future politicians.
Sarah A. Binder, senior fellow of governance studies at the Brookings Institution, said Republicans do have some tools at their disposal to derail Smith’s investigation, but she doubted any of them would work. Republicans in Congress could use their oversight powers to demand the DOJ submit detailed periodic reports on Smith’s work, or rely on its control of government spending to choke off his special counsel office—akin to the way Republicans have banned the ATF from spending any money creating a national registry of gun owners.
“They can cut Jack Smith’s salary to a dollar, or they could simply defund the special counsel's office more generally,” she told The Daily Beast. “But I’d be highly skeptical that any of these avenues would make a dent on the course of the prosecution.”
Any Republican effort in Congress is likely to face substantial resistance on the House floor, she said, and getting those obstruction tactics through the Democratic Senate would be even harder.
But that doesn’t mean Republicans won’t try to portray Smith as a corrupt bureaucrat—even if that narrative has no basis in reality.
The grand irony of Republicans looking to use Smith’s past to sully him is that his record may also show he’s far from a partisan hack. Look no further than a 2014 joint staff report prepared for the GOP-controlled House Oversight and Senate Judiciary committees—then run by Rep. Issa and Sen. Chuck Grassley, respectively, both of whom now loudly complain about Smith in defense of Trump.
Back then, congressional staffers examined the way President Obama’s Food and Drug Administration spied on its own scientists to punish them for trying to expose how the agency was ignoring radiation warnings and approving unsafe medical devices.
When FDA administrators monitored employees’ computers and then turned them over to the DOJ for prosecution, it was Public Integrity division chief Jack Smith who made the pivotal decision in 2010 to say no.
In doing so, Smith stood as a wall between pissed-off Obama-appointed bureaucrats and whistleblowers.
And that’s the side of Smith—whom friends and former colleagues describe as a “true believer” in cracking down on public corruption—that Trump loyalists inside and outside of Congress are hesitant to acknowledge now.
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