Jack Smith Shamelessly Withholds Evidence

Although it is encouraging to see legal experts like Jonathan Turley and Andy McCarthy trash special counsel Jack Smith’s most recent motion for its contortion of the law, a stronger and more tangible case can be made against Smith for his withholding and manipulation of critical evidence.

According to the DOJ’s Justice Manual, a prosecutor has an “obligation both to disclose exculpatory and impeachment information to criminal defendants and to seek a just result in every case.” Smith shamelessly, blatantly, almost comically ignores DOJ policy. 

Smith’s failure to disclose falls into three general categories. The first, and subtlest, is his distortion of the protestors’ mood on January 6, 2021. The second, and more obvious, is his concealment of exculpatory statements made by President Donald Trump himself. The third, and more devious, is his manipulation of the day’s timeline.

According to Smith Trump lied about election fraud “to inflame and motivate the large and angry crowd of his supporters to march to the Capitol and disrupt the certification proceeding.” Throughout the document — four separate occasions — Smith insists the crowd was “angry” and that an “angry” president made them that way. Writes Smith, “The overall impact of the defendant’s speech — particularly in light of months of statements and Tweets falsely claiming election fraud … was to fuel the crowd’s anger.” (READ MORE from Jack Cashill: Jack Smith and the Hijacking of January 6)

The rallygoers I interviewed for my book Ashli: The Untold Story of the Women of January 6, came away with a different impression. “It was a happy, joyful day,” Dr. Simone Gold told me. There were grandmas pushing baby carriages, groups literally singing “Kumbaya,” and people of every race mixing peacefully together. Said retired NYPD officer Sara Carpenter of the march to the Capitol, “It was kids. It was dogs. It was wonderful.”

Said Micki Witthoeft, the mother of Ashli Babbitt who was shot and killed that day by a Capitol Police officer, “I can see in that video that [Ashli] was absolutely in her element, having a wonderful time.” Husband Aaron Babbitt agreed. From her texts he concluded, “She was having the best day of her life.”

A more obvious failing of Smith’s motion is a failing he shares with the House January 6 committee and the major media, namely the conscious omission of Trump’s exculpatory statements. If proof were needed of Smith’s ill intent, consider his damning analysis of Trump’s speech on the White House Ellipse:

When the  defendant soon after told his supporters “we’re going to walk down to the Capitol,” that they would “never take back our country with weakness” and that they had to “show strength and to be strong,” members of the crowd shouted, “Invade the Capitol building!” and “Take the Capitol!”

The deception here is as blatant as the Left’s “very fine people” Charlottesville smear. Upon reading this paragraph, literally millions of Republicans — and maybe even a handful of media people — can tell you what Smith chose not to report, namely Trump’s comment just seconds later:  “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” As to crowd members shouting, “Invade the Capitol building!” and “Take the Capitol!” Smith cites as his source a “Rallygoer video.” That’s it. No names.

Smith conceals two other significant communications. At 1:38, Trump tweeted, “Please support our local police and law enforcement. They are truly on the side of our Country. Stay peaceful.” At 2:13, Trump tweeted, “I am asking for everyone at the Capitol to remain peaceful. No violence! Remember WE are the party of law and order.” 

Not surprisingly, Smith makes no mention of Ashli Babbitt’s death. The omission is glaring in that Smith mentions specifically the breaking of the window into which Babbitt, a 14-year Air Force veteran, leaped before being shot without warning by a Capitol Police officer. The window Smith can blame on Trump supporters. The shooting, well, that’s best left unspoken.

Babbitt presents another problem for Smith. Thanks to a law suit filed by Aaron Babbitt and Judicial Watch, we know her precise timeline that fateful day. Babbitt stayed to the end of Trump’s speech on the Ellipse which wrapped up at about 1:10. The Ellipse is a good 45-minute walk from the Capitol. At 2 p.m., a random photographer took a picture of Babbitt with the Capitol looming majestically in the background. Babbitt was no laggard. Smith quotes a protestor who was interviewed by a news station at 2:11 as he was marching to the Capitol. 

At 2:23 Babbitt entered the building. This is exactly 90 minutes after notorious agent provocateur Ray Epps and his crew first breached the perimeter of the Capitol grounds at 12:53. For the previous half hour or so, Epps had been shepherding people down Pennsylvania Avenue. “We are going to the Capitol,” he shouted. “That’s where our problems are.” 

After three increasingly awkward years without arresting Epps, the DOJ slapped his wrist with a year’s probation. Unconnected individuals who did less got as much as 20 years. One of the women I profile in Ashli got 4-1/2 years for helping break a window. Smith does not mention Epps or the other agent provocateurs seeded throughout the crowd. If they were instructed to shout incendiary comments such as “Invade the Capitol” or “Hang Mike Pence,” the defendant has no way of knowing.

At 1:06 p.m. the undertrained Capitol Police began lobbing munitions into a boisterous but peaceful crowd on the west terrace of the Capitol. These people were unmoved by Trump’s speech for the simple reason they could not have heard it. Indeed, at 1:06 p.m. Trump had yet to deliver his alleged call to action — “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore” — and, I repeat, he was a 45-minute walk away.

It was not until 2:24 p.m. that Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” Smith claims that the Secret Service was forced to evacuate Pence to a secure location exactly one minute later, falsely implying the tweet made the evacuation necessary. 

No, what made evacuation necessary was that the Capitol building had been breached at 2:13. As the House January 6 Committee report notes, “Just as the building was being breached, Vice President Pence and Speaker Pelosi were ushered off the Senate and House floors, respectively.”

What made the crowd “angry” in the first place was not Trump’s tweet about Mike Pence, as Smith implies, but the reckless use of flash bangs, rubber bullets, and tear gas by the police. Indeed, at 1:28, 56-year-old father of five, Kevin Greeson, collapsed and soon died of cardiac arrest after a flash bang exploded in his face.

As mentioned earlier, Smith does not quote either of the Trump tweets that called for peace. Nor does he describe their content. Rather, he says backhandedly, “The defendant at least has an argument — though he issued the 2:38 p.m. and 3:13 p.m. tweets only after being harangued by his staff while he adamantly refused to do anything at all — that he was addressing a matter of public safety as President (the riot at the Capitol).”

Trump and his advisers did not see these tweets until 2023 when Twitter and Facebook unlocked his accounts. On February 17, 2023, FactCheck.org, no friend of Trump, grudgingly showed the two tweets. The first was posted at 1:38, the second at 2:13, each an hour before Smith and the January 6 committee claimed they were posted.

This is a major discrepancy. If FactCheck’s visual evidence is genuine — and there is no reason to believe it is not — Trump would have sent the first tweet minutes after he returned to the White House from the Ellipse and the second before the Capitol building had been breached. Smith’s claim — and a Democratic talking point — that Trump “adamantly refused to do anything at all” is false to the point of slander. (READ MORE: Who Had Capitol Police Officer Brian Sicknick ‘Murdered’?)

Yes, Trump could have been more emphatic in his call for order, but when at 4:17 p.m., he said on a posted video, “You have to go home now. We have to have peace. We have to have law and order. We don’t want anybody hurt,” Twitter promptly applied a warning label. It read, “The claim of election fraud is disputed, and this tweet can’t be replied to, Retweeted, or liked due to a risk of violence.” Facebook blocked the post as well.

Censorship has consequences. Fifteen or so minutes after Trump’s video was blocked, the Metropolitan PD shoved 34-year-old Rosanne Boyland and other protestors down a flight of stairs. When Boyland was pulled out from the pile unconscious, stick-wielding policewoman Lila Morris struck her repeatedly over the head. Boyland died soon afterwards, and Morris went to the Super Bowl to be honored for her heroism.

As they say, the difference between the New York Times and the old Soviet Pravda, is that Pravda readers knew they were being lied to. Smith seems to have figured this out.

Jack Cashill’s book, Ashli: The Untold Story of the Women of January 6, is available in all formats.

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