Jack Smith Knows his Justice Robert Jackson
Justice Robert H. Jackson, lead US prosecutor at Nuremberg
Much is being made, rightly, of the current historical moment: a former US president has been indicted in federal court. Trump and his supporters are trying to position this investigation and indictment as political revenge. Sadly for them, Special Counsel Jack Smith appears to understand the best lessons to come out of the Nuremberg Trials of Nazi leadership after World War II.
The US legal delegation at Nuremberg was led by US Supreme Court Justice Robert Jackson. In his opening statement at the first trial, he acknowledged that the victors in the war were in charge of the trial.
Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course.
But how does a prosecution by the victors avoid being accused of running a kangaroo court? Again, from Justice Jackson:
We will not ask you to convict these men on the testimony of their foes. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you, from the screen, some of the events in the course of the conspiracy.
[UPDATE: I just found video of Jackson’s opening remarks. The “Unfortunately . . .” quote above is at the 10:15 mark, and “We will not ask you . . .” quote is at 12:55.]
As I read the indictment in the matter of the United States v. Donald J. Trump, Jackson’s words kept echoing in my head.
Books and records . . .
Vanity and photographs . . .
“You will see their own conduct and hear their own voices . . .”
What Marcy labeled (properly!) as “Hillary’s Revenge” is a collection of Trump’s own words, and Trump can be seen and heard saying them in numerous video clips all over the internet. The same is true of “Brennan’s Revenge”.
It should be no surprise to anyone that the Trump indictment echoes Justice Robert Jackson at Nuremberg. Before he was named as the Special Counsel in this matter, Jack Smith had spent several years working at the International Criminal Court at the Hague. From his wiki:
From 2008 to 2010, Smith worked as Investigation Coordinator for the Office of the Prosecutor of the International Criminal Court in The Hague.[11][10] In that position, he oversaw cases against government officials and militia members accused of war crimes and genocide.[3][9]
[snip]
On May 7, 2018, Smith was named to a four-year term as chief prosecutor for the Kosovo Specialist Chambers in The Hague, investigating war crimes committed in the Kosovo War,[8][9][13] including the case of Salih Mustafa.[16] He took up the post on September 11, 2018, and was appointed to a second term on May 8, 2022.[8]
You don’t hold positions like these without studying the Nuremberg Trials and learning their lessons.
In Jackson’s opening speech to the Nuremberg Tribunal, at the end of his introductory remarks and before he pivots into the specific discussion of the case at hand, he offered these words to the Tribunal:
The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.
“Men of station and rank . . .”
“men who knew how to use lesser folk as tools . . .”
“reach the planners and designers, inciters and leaders . . .”
Marcy called the Trump indictment a “tactical nuke” and she explored how it ramps up pressure on Walt Nauta to come clean. But more than that, I see it as Jack Smith channeling his inner Justice Jackson.
Yes, this is the DOJ of a political victor charging a political loser with serious crimes, but Smith learned from Jackson how that can be done with integrity. Yes, this is the first time a former US president has been charged with serious crimes, but Smith learned from Jackson that this must be done when circumstances warrant, or the nation and the world will pay a price for failing to seek justice.
Jack Smith knows his Justice Robert Jackson. Now he’s begun teaching Team Trump what’s he learned, and something tells me they aren’t going to like it at all.
Two party politics is not supposed to be on a World War footing.
It kinda defeats the object.
“Divide and conquer” is how the Nazis got to power in the first place.
Which is exactly why Justice Jackson’s words at Nuremberg are so important, and why Smith seems to have taken them to heart in crafting this indictment. He is making it clear that Trump will be convicted based on his own words and images, and those of his supporters — not on the words and testimony of his political opponents.
I’m not equating Trump retaining documents and obstructing justice with the crimes of the Nazis. I’m equating the legal strategy to prosecution of the German leaders at Nuremberg by Justice Robert Jackson with the unfolding legal strategy being employed in SDFL by Smith against Trump.
I read the indictment and understood exactly what your piece meant. I don’t think it needs and further explanation. Thank you.
Yes! Justice on equal footing. I enjoyed this post so much!
Peterr, your analogy is apt and beyond timely. Thank you for pulling such a pertinent historical strand into the weave of our commentary!
I want to ask about one asymmetrical aspect. In your comment above you refer to Smith’s legal strategy in SDFL, but the scope of DOJ’s investigation is far broader and may involve charges in (at least) DC. Peterr, I’m curious how you see the Justice Jackson/Nuremburg parallel extending to these potential venues/charges.
I find the war-crime metaphor so persuasive that I’d argue it’s not just a metaphor (inciting a coup being no different from declaring war on your own government), but I may be in an extreme category there.
I think the parallel will continue with any DC indictments related to Jan 6. It’s the same situation and will require the same strategy, but magnified in scope several times.
So many of the cases tried thus far have already leaned on this same structure: “Here’s what you said on Facebook ahead of Jan 6; here’s what you put up ON Jan 6; here’s what you did after Jan 6. We don’t need anything more to prove your guilt – you convicted yourself.”
A very thought-stimulating post, thank you. Trump and his followers haven’t yet acted as heinously as the acts examined at Nuremberg, but the indicated prescription may be similar.
In my opinion, there is no greater crime to our country then efforts to undermine our democracy by our elected president. If you follow what we actually do know by Trump’s behavior and the facts that continue to come to light, it is clear that at the least, he mishandled documents that if in the hands of our enemies would cause our country great damage. And at the worst (yet to be proven), documents were sold or exchanged for value to Trump and other(s) in his orbit. Can anyone forget his Helsinki press conference when he groveled at the feet of Putin? Can anyone forget his bizarre relationship with the North Korean despot, Kim Jong Un? Can anyone forget that his son-in-law received $2 Billion from the Saudis and Trump himself is receiving unknown amounts from the Saudis for use of his golf courses? Can anyone forget the assistance he received from the Russians underlying his “win” of the 2016 presidential election? Can anyone forget the spread of hatred, intolerance, and violence he continues to promote and that continues to divide our country? This is not just about documents. This is about the purposeful sell out and undermining of our democracy by Trump and his sycophants that hold power. Alleluia that he is being held accountable for his handling of these documents.
[Thanks for updating your username to meet the 8 letter minimum. I assume that’s what you’ve done here, changing from “NJoy.” /~Rayne]
“Not supposed to be,” yes, of course. But how would you propose it be done differently? No choice in a situation like this – a demagogic criminal seeking power over the state so as to continue to commit crimes and dismantle the rule of law – comes without some critics viewing it as “victor’s justice,” viz, the WSJ editorial accusing Garland of doing Biden’s political bidding. To do nothing is surely worse. And as Peterr makes clear, DOJ is doing its best to charge Trump on the basis of what amount to confessions.
Your comment seems uninformed. Ed was critiquing how well Jackson distinguished between victors’ justice and a principled prosecution, a process Jack Smith seems to be following meticulously.
As for the part about “two parties,” yeah, well, that depends on the character of each party. The current GOP has rejected contemporary norms of governance, the rule of law, and the limits of acceptable party conduct. Indeed, it is following Trump in rejecting fact and reality. It is celebrating Trump’s lawlessness, not abandoning him because of it. Democrats would be foolish to adhere to past norms when confronting such a violent and disloyal opposition.
Peterr, not Ed.
But I’m honored by being mistaken for him.
A thousand pardons.
I would add, as you already know, that you chose one of the top lawyers among the top lawyers that FDR recruited into government. Jackson was already on the Supreme Court when he took a sabbatical to run the US legal team that worked on the Nuremberg Trials.
When I first heard about Jackson taking a sabbatical from SCOTUS as a teenager, I was blown away. On reflection later on, it makes absolute sense. If ever there was a platform on which to attempt to show the world the best of the judicial system — presumptions of innocence, provision of counsel to the accused, etc. — Nuremberg was it. Yes, there were clear concerns, like the notion of “victor’s justice” described above, but the lengths to which the Allied Powers went were incredible to provide an honest venue for a trial of enemy leaders charged with crimes that went far beyond the ordinary actions of war.
I, too, was amazed to learn thatRobert Jackson gave up a SC seat (temporarily) to work on Nuremberg. What also surprised me was to learn that he worked with Lauterpacht on formulating the Lend-Lease Act prior to the US entering the war.
Great post Peterr. I especially focused on the notion of the defeated party judging its own (in this parallel, it’s the GOP judging Trump after 2020 and we saw how well that went). I think this highlights (now, as in the case of Nuremburg) the necessity of executing the legal strategy you’re discussing here.
President Ford had no idea either, when he pardoned Tricky Dick.
This is nonsense, Ford knew exactly what he was doing. Whether one agrees with his decision or not. Please stop.
Even if it were snark, the comment fails. If not, as bmaz says, it is painfully wrong. Gerald Ford was no patsy ex-college footballer, thrust into the limelight. He was a star on the University of Michigan’s football team and turned down offers from two pro teams after graduation. He studied at Yale Law School, graduating in the top third – while serving as head coach for the university’s junior varsity football team.
He served in Congress for twenty-five years and for many was House Minority Leader. He was, of course, VP and President. One of his part-time jobs was as a member of the Warren Commission, investigating JFK’s murder. There was very little he did not know about politics – or why he chose to save the GOP by pardoning Dick Nixon before a public trial could out his crimes.
Gerald Ford, who, as a member of the Warren Commission, repositioned the bullet entry holes on a graphic of JFK’s head to support the single bullet theory, didn’t know what he was doing?
I hope Jack Smith has given up bicycling, at least until November 2024.
[Moderator’s note: did you give even a second’s thought to how this comment sounds, that it might look like a threat? If you weren’t a regular commenter this would be spiked into the Trash bin immediately. Avoid this kind of talk in the future. /~Rayne]
[And I VERY much considered doing exactly that, but decided to free it up and note how incredibly improper this is. Whatever you think relatively, don’t talk about the harming of humans, even in jest. — bmaz (sign your own remarks, pls/~Rayne)]
This comment pretty clearly seemed to reflect the likelihood that Smith is now in danger of violence from MAGAts. It alludes to Smith being hit by a truck while riding his bicycle many years ago.
[Moderator’s note: No, it’s not clear, at all. You’re encouraging this as well. Knock it off or end up in auto-moderation. /~Rayne]
For the love of fucking gawd, please stop with this shit.
Its dangerous even when MAGA nuts aren’t enraged. He can ride a stationary bike, or on a city path. There are alternatives. I think the intent was harmless in the post,
It was NOT considered “harmless” here, and do NOT fuck with us over stupid stuff like this. WTF is wrong with you?
I’m about ready to put several people in auto-moderation because I don’t have time to mess with this garbage.
We should not have multiple posts rebutting a demand to avoid any allusions to violence after moderators have said it’s not acceptable.
If there’s one more reply to this “harmless” bullshit I’m ripping it all out and putting it in the bin.
ADDER – 11JUN2023 1:35 pm – Dear Tedious: Have a nice day in the bin!
Thank-you. 1000%
Ya know, “auto moderation” might be a good solution. I would certainly be better than the “get off my lawn” responses from a b**z moderator.
There’s a large portion of moderation here which is automated. Thanks for making an assumption you know how this works.
The “get off my lawn” helps keep down trolls who can and do bypass automation. Don’t like it? Don’t read the comments.
Great post Peter. Smith does seem to be the right person for this job. And thank you to all the contributors here at EW. Time to up the contributions to this site for all this outstanding and illuminating work, not to mention the behind the scenes moderation that’s surely gotten more intense in recent days.
Thanks, and even more thanks to everyone who chips in to support the site!
Regarding my contribution to EW, why do I feel like it’s just one raindrop from a small cloudburst? While the on other side of the ridge, a raging River of Donations floods into an undaunted legal defense pool for our ex-POTUS. Who funded the legal defense teams at the Nuremberg Tribunal? Certainly not the forefathers of our own Harlan Crows…
Thank you for this insightful post Peterr.
Smith’s approach, while likely the best available, is not going to stop the frothers. They are going to claim selective prosecution (false, as seen in these pages), ignore that the evidence comes from Trumpworld, not from the testimony of democrats, and threaten retailiation.
The threats of retaliation and the frothing claims may lead to legitimate protests and will lead to attempts at violence. Watch your six, Smith and co.
Pretty sure that Jack Smith has some clue about how to get protection if he needs/wants it; telling a former war crimes judge that he might be facing some sort of threat is kind of…clueless…at best?
This is an excellent post, and It’s worth adding that critics of pieces like this will come up with dumb applications of Godwin’s Law.
When Mike Godwin coined it, he was definitely not calling to shut down any comparisons to the Nazis, he was just calling for people to understand when they were and were not appropriate.
He has actually encouraged thinking about the US right wing in terms of fascism. For example, his pinned tweet now says:
“People have asked me my opinion of President Biden’s criticism of “semi-fascism.” Well, I can’t overstate my disapproval of the inappropriate use of “semi.””
Historical comparisons are always going to be imperfect, but they can be a powerful tool for illuminating present circumstances.
Thank you Peterr for bringing up this history and showing how Smith may be using Justice Jackson’s words as a framework to place Trump’s prosecution in such a starkly divided and politically hot season.
I have a good feeling about Smith’s ability to navigate through the MAGA nastiness he’s going to receive for a very long time after reading about his prosecution of Kosovo’s sitting president and how dicey, partisan and edged with violence bringing the case to trial was. Although Kosovo is a much smaller country on the national stage, I still think it was an excellent exercise to prepare him for charging a very dangerous former president who commands extravagant loyalty from his capos, and is well aware of all the potential scenarios that could play out in the court of public perception.
And Peterr, I also think it was very timely to post this to us Readers, who may be enjoying a tad too much Schadenfreude, or considering stooping political play to the level of MAGATs. I was truly impressed with Biden’s reaction to the debt ceiling crisis that involved not dragging the press into negotiations to pressure McCarthy and not hyping the concessions and wins that the Democrats negotiated. However, while Biden was playing it cool, many Democratic leaders and mouth pieces complained to the press about Biden’s method and that he was gonna sell out or be taken advantage of by the MAGA hostage takers.
As the Justice Department is filled with Democrat appointments, they really are the analogous victors in the position of judges as Justice Jackson wrote, and therefore have an obligation to act with gravitas and awareness of that power dynamic.
It gets exhausting dealing with the MAGA social wars, and bad faith political maneuvers. But if we are to convince any teetering former Trump voters that this guy’s actions endangered our Republic without concern or remorse and deserves whatever punishment he gets and should never hold office again- letting himself and other GOP members do the talking will go a long way towards keeping the civil temperature down to a simmer rather than boiling over into violence, which I believe Trump will call for, not just hint at or imply.
Letting Trump hang himself will allow his former supporters to come to terms with what he’s done and repair their betrayal and disappointment on their own terms. Yeah, it sucks that we can’t own the folks that live to own the libs on this, but as Peterr shows us, justice in a democracy requires actual noble principles in action, from all of us.
Thanks Peterr.
Yes! Peterr and Fancy Chicken hit the nail on the head here. This challenging time does require nobility and principled action, something so sorely lacking in the GOP that it is astonishing. I have, at times, been ashamed of myself for stooping to the level of MAGA mentality, responding with anger and vitriol on social media. When it happens, it’s an act of desperation, truly a level of frustration and fear at what we are becoming, but, that does not excuse it. This is an excellent reminder to stay on the high road; I really appreciate this post. Both for our nation and system of justice, and as individuals,we must strive to be scrupulous in words and deeds.
1. Thanks.
2. Peterr”s analysis seems to apply even more rigorously to the 01/06 activities.
3. My recollection is that Smith’s assignment involves broad power to charge others shown to have engaged in criminal activity. He has used that power. I wonder what other planners and inciters who used ordinary people will also be indicted.
W.r.t. #3, I suspect the Nuremberg parallels have only just begun.
Updated the post to add a link to video (!) of Justice Robert Jackson’s opening speech.
Thanks, Peterr! Great post.
Thank you, Peter. Excellent post — especially with marking such foundation quotes. Yes, these quotes stay in my head — as they should.
I just read “East-West Street” (Phillip Sands). Remarkable, really in its discussion of Lauterpacht’s “crimes against humanity” and Lemkin’s “genocide” pertaining to the Articles of Convention that were adopted. An interesting personal bit: my mother worked on the Nuremberg Trials as a court reporter, and reported Goering’s testimony. She is shown in the photo in Sand’s book.
Was she recording Goering’s German, or the official English translation?
Either way, wow!
German. (Her father was a German immigrant and mother an Irish immigrant, both devoutly Catholic.)
She arrived in Nuremberg May 25, 1945 and stayed 3+ years. She said the work would have been overwhelming horror except for Robert Jackson’s focus on the work of evidence and fact. She said they felt as though they were working on the side of the angels.
I have a great aunt who went to Germany as part of the post-war relief efforts, When she met with the US military, she was often the only woman present, but was received with respect because (unlike all the generals around her) she could speak German and relate to the locals. When she met with the locals, she was received with respect because she would advocate for them with the US military.
Her father was alternately horrified that his single daughter in her 20s would go to post-war Germany and honored that his daughter would take on such a powerful challenge.
What a great story, Peter. I’ll bet your great aunt had dozens of stories about post-war Germany.
THANKS for sharing your stories, Peterr and posaune!
Ditto!
Excellent perspective that had not occurred to me, even with Holocaust survivors (and of course non-survivors) in my family. Thanks much Peterr.
This same strategy was followed by the J6 Commission.
Thank you, thank you for elevating the conversation with an international and historic reference. There might be hope for humanity yet. Thank you Peterr.
Of course we take the high road and eschew speculation of physical harm lurking in the shadows. And yet:
Conservative terrorists threaten armed resistance to protect their God King cult leader
That Rep. Clay Higgins is a real piece of work. Scroll down to catch his unhinged diatribes.
Professionally speaking . . . Good Lord.
The phrase “real piece of work” doesn’t begin to capture the mindset of Higgins. Reminds me of what I quoted above in the post from Robert Jackson: “These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools.”
Rants like that serve as a reminder that here in our liberal Bay Area bubble we may have no real clue as to what’s out there.
The GOP members from California – and those in the state legislature – are of similar minds, when they speak.
Digby:
There is nothing he could do to shake their allegiance
Shame on the WaPo:
Fuck the WaPo. It’s Trump coverage is about as bad as the NYT. Neither can contemplate holding abusive wielders of power to account.
It’s astounding to me that no “newspaper of record,” can consider the criminality of the acts described in the indictment, nor the damage to our intelligence agents, and those of our allies. I an hardly believe it, given the indictment seems so clear. Have the oligarchs bought off the entire MSM?
In the piece you linked to, Digby is criticizing a piece from the Wall Street Journal Editorial Board, not the Washington Post. Just FYI.
In the piece you linked to, Digby is criticizing a piece from the Wall Street Journal Editorial Board, not the Washington Post. Just FYI.
Arrrggg! I didn’t get past the W. My bad.
Author of THE UNDERTOW: Scenes from a Slow Civil War:
https://twitter.com/JeffSharlet/status/1667172007010549763
10:09 AM · Jun 9, 2023
At Internet Archive: https://web.archive.org/web/20230611135721/https://twitter.com/johnkruzel/status/1667177064401715201
From above. “ men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools”
The game of chess was derived from battles of the early times. The pieces corresponded to the levels of power in these battles among fiefdoms. Kings queens bishops knights castles. The earliest known chess set from 11th century depicted the front row pawns as tombstones
“… front row pawns as tombstones…”
Why does a Monty Python comedy skit come to mind?
I was going to go with Steely Dan’s “I don’t want to do your dirty work no more” but held back.
Or, from Warren Zevon’s end-of-the-line, bottom-of-the-barrel confession, MY SHIT’S FUCKED UP:
“The shit that used to work?
It don’t work now.”
“Just a flesh wound”, said pawn#6
They aren’t tombstones, but anonymous soldiers, if you’re talking about the Lewis chess set.
My question has been how many genuine MAGA Republicans are there? We here a lot from the outspoken crazoids, but that is because media gives them a megaphone to spout their bullshit.
And thank you, Peter, for an excellent post.
hear, not here. Sheesh.
I agree wholeheartedly!
How many magna nuts are just being promoted by media! , compared to how many are really out there?
I wonder if he was advising the J6 commission, seems like they followed the recommendations too.
And a warning from Turchin, who is a thoughtful researcher, and involved in a lot of X-risk study at LessW
How to avoid a civil war, by the man who predicted Trump
David Shariatmadari
Across the west, popular misery and ‘elite overproduction’ are fueling crisis, argues data-driven historian Peter Turchin. So what can we do to turn things around?
https://www.theguardian.com/books/2023/jun/10/how-to-avoid-a-civil-war-by-the-man-who-predicted-trump
Redford and Hoffman played Woodard and Bernstein in “All the President’s Men.”
Who will play Jack Smith in the movie “Demise of MAGA?”
Who is your choice?
Got a better title?
Hollywood wants to know.
I nominate Tom Hanks. He gave a wonderful commencement address at Harvard.
It has to be Hugh Laurie, right? The widely circulated picture of Smith in uncannily similar to Hugh’s character image in the series ‘Avenue 5’
Great post, succinct, thoughtful, taught me a lot with few words.
Thank you, Peterr, for the clear and succinct connection between difficult times and brave men. Seeds do indeed get planted by what we do and how we do it, by what we say and the words we use.
Bmaz/Earl
On Ford,
I agree that Gerry was a “good shit”, someone we would invite to our monthly poker game. He can take a joke and would probably come back was a few snarky remarks. Ford was a deft politician; his heart was in the right place. Many believe his decision to pardon Nixon was a profile in courage decision. I think 53% of the folks back in the day wanted Jaworski to indict Nixon, so the nation was equally divided.
I was responding to Peterr’s statement:
“Yes, this is the first time a former US president has been charged with serious crimes, but Smith learned from Jackson that this must be done when circumstances warrant, or the nation and the world will pay a price for failing to seek justice.”
To wit, unlike Smith, Ford did not learn or was unaware of Justice Jackson.
Come to find out, Ford relied on the Supreme Court decision in Burdick v United States as a basis for his pardon. Per the Constitutional Center, the court ruled that “a pardon carried an imputation of guilt and accepting a pardon was an admission of guilt. Thus, this decision implied that Nixon accepted his guilt in Watergate controversy by also accepting Ford’s pardon.”
Ford kept this bit of info in his wallet as a reminder and to defend his position.
I guess, my problem is that he kicked the can down the road, so we have no precedent when Trump came rolling down the escalator.
I hope this clarifies matters, but I have to say that Herschel Walker was a fine football player and Kavanaugh attended Yale. (Only kidding)
The thought that Burdick mandated a pardon implied or necessitates an acceptance of guilt is complete horse manure, and always has been. Ford or not.
Yes. Holy shit we agree
Magnificent!
This gives me some hope. Jack Smith has a big picture of history. I’m new here – I thought emptywheel was only Marcy, whom I’ve been following for years, now a supporter. Good. to get various opinions.
Hi. There have been MANY others forever. And have been forever.
Somewhat belatedly, I’d like to thank you, Peterr, very much for your post with the Jackson quotes and your respective thoughts. Thanks also for the update with the link to the video; Justice Jackson sounds so clear in various ways. Your post sent me on a reading tour refreshing my memory about what a I knew about the Nuremberg trial (and also adding information, still just a fraction of this part of history).
For those who would like to read the full Jackson statement, here is a link to a transcript of the 2nd day of the Nuremberg trial when the statement was given (starting after the initial pleadings of the accused): https://avalon.law.yale.edu/imt/11-21-45.asp.
Thanks for writing this Peterr. Excellent analysis and historical centext. I do hope you write more often here as I did really enjoy it.
Cheers!
Well done, thank you. Fascinating to learn about Jackson’s sabbatical.
I’ll trade a Mueller Time t-shirt for one of Jack Smith with this quote.