Conservative Provocateur

Trump Special Prosecutor Has a History of Indicting Presidents

9 min read

December 20, 2022 at 07:04AM


Witnesses had lost hope and disappeared. Criminal suspect No. 1 had become president. And the long-awaited indictment now seemed unreachable.

Then, American prosecutor Jack Smith came along and took charge, sending his investigators on an aggressive mission to win back reluctant witnesses—by targeting the tight-lipped politicians and militant nationalists who had kept them silent.

The story may sound familiar, if not a bit like resistance fan-fiction. But this story is actually about Smith’s efforts in Kosovo, a small country in southeastern Europe that was historically an Albanian enclave in Serbia. It was difficult every step of the way. Smith had to defend his work from widespread accusations that he was conducting an unfair political prosecution to remove the nation’s favorite leader. And the narrative was that cooperators are traitors—and that these lawyers like Smith were trying to destroy the country.

It may prove to be an invaluable experience.

Since the U.S. Department of Justice appointed Smith as the trusted special counsel investigating former President Donald Trump last month, there have been dozens of news profiles focusing on his time as a domestic prosecutor investigating public corruption. Several have even incorrectly identified the international court he served on. But this is the first sweeping look at what exactly he accomplished while on a special assignment abroad in Europe, where he took down Kosovo’s sitting president—and gained the credentials to target an American one.

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“It’s not like this is his first rodeo,” said David Schwendiman, who led the Kosovo investigation until Smith took over. “It has huge political consequences. It takes bravery. Jack’s got to decide whether he’s going to indict a former president of the United States. But he did the same thing when it came to Hashim Thaçi.”

Kosovo’s now ex-president remains trapped inside a jail in the Dutch city of The Hague. Understanding how he got there helps contextualize Smith’s legacy at the controversial international prosecutor’s office he led until last month—and his ability to face Trump now.

The break-up of post-Communist Yugoslavia in the early 1990s led to a brutal war of succession between its constituent peoples and republics marked by atrocities including mass rape and murder and widespread ethnic cleansing. The conflicts that erupted first in Slovenia and then Croatia, Bosnia-Herzegovina, and Serbia captured global attention and drew in international peacekeepers—who all too often stood by as the slaughter continued. In its aftermath, most of the efforts at punishing people for crimes against humanity were directed at the Serbs who ordered or led the bloody attacks on civilians, men such as Slobodan Milošević and Ratko Mladić.

<div class="inline-image__caption">
<p>Former Kosovo President Hashim Thaçi, who resigned and was taken into custody of a war crimes tribunal, appears for the first time before the Kosovo Specialist Chambers in The Hague, Netherlands Nov. 9, 2020.</p>
<div class="inline-image__credit">Jerry Lampen/Pool via Reuters</div>

Former Kosovo President Hashim Thaçi, who resigned and was taken into custody of a war crimes tribunal, appears for the first time before the Kosovo Specialist Chambers in The Hague, Netherlands Nov. 9, 2020.

Jerry Lampen/Pool via Reuters

Rarely were accusations lobbed at the NATO-backed Kosovo rebels whose independence fight against Serbian forces culminated in the NATO bombardment of targets inside Serbia in 1999. That is, until a Swiss prosecutor wrote a tell-all book in 2008 claiming that the Kosovo Liberation Army had committed torture too—and that the KLA had even engaged in a sick plot to forcefully remove organs from prisoners to sell them on the black market.

When an official European government report in 2011 backed up some of those claims, American and European diplomats joined forces to set up a new international criminal court to focus solely on KLA abuses, pressuring Kosovo to accept the results.

The United States, known for its buttoned-down approach to law enforcement, supplied the lawyers to build the case. Clint Williamson, who had previously prosecuted Serbs, led the first iteration of that investigation until 2014. David Schwendiman, another federal prosecutor-turned-diplomat, managed to launch the new Kosovo Specialist Prosecutor’s Office based in the Netherlands during the next four years.

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By the time Smith was appointed to lead this new office in 2018, the effort had stalled, according to two sources who discussed the firsthand bureaucratic drama on condition of anonymity. The sheer passage of time itself had harmed the investigation, they said. Developing a new court with new rules and launching a new law enforcement operation was no joke. But the entire effort was starting to look like one of the West’s administrative exercises leading nowhere.

It had been a full 19 years since KLA rebels had allegedly held these secret medical operations on captives, and still not a single indictment had been filed by this new office. Evidence in Kosovo had been destroyed. And the few witnesses brave enough to come forward were even more frightened, because international prosecutors had failed to deliver on promises they made. By now, KLA veterans had a stranglehold on domestic politics. And a wartime militia leader, Thaçi, had risen to become Kosovo’s prime minister—formally declaring independence from Serbia in 2008—and eventually president.

“Serbian oppression was horrible,” Williamson told The Daily Beast. “KLA was given a lot of credit by the population for going out and fighting the Serbs. They had hero status. What happened is that Thaçi and others exploited this to advance their political fortunes.”

Smith, dressed in purple robes at a new office in The Hague, now faced a hugely popular president 1,000 miles away who felt emboldened by his nationalist credentials and protected by a prevailing narrative: that any attack on him was an attack on Kosovo itself.

“This is a formula that worked for years: ‘This is an attack on our independence, our freedom.’

By trying to collectivize this, they tried to undermine the judicial process,” Williamson noted.

Smith’s first priority was to breathe life back into the investigation itself, said Williamson, who originally recommended the younger prosecutor for the job.

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“When Jack came in, he really just made a full-court press to get these witnesses that had contributed to the process earlier to come onboard again. He was pushing his prosecutors to get these witnesses back into the fold,” Williamson said.

That itself was a monumental feat.

“Witness intimidation is endemic in war crimes cases, because nobody wants to testify against war heroes. The KLA is perceived as liberators,” said Dean Pineles, an American judge who served on another international court that has reviewed war crimes in Kosovo.

Once they got insiders talking again, Smith then quickly developed a sense of how Thaçi and others operated. Legal scholars have noted how prosecuting wartime atrocity crimes—conducted by soldiers at the direction of leaders who bear ultimate responsibility but remain protected by their clan—is something like taking down a mob. Investigators need to accumulate the basic evidence of a crime—like what happened and where—while mapping out a chain of command.

“This is not unlike organized crime prosecutions. A mafia boss very rarely pulls the trigger himself. He’s ordering somebody to do it. You have to develop the linkages between the trigger puller and the big boss who’s giving the orders for this to be done—or creating the conditions for this to happen,” Williamson said. “This was an area where Jack made a lot of progress, fleshing out these relationships with the structures in Kosovo… who was responsible for what.”

Smith’s office also had its fair share of questionable incidents under his watch.

The first shocker came in June 2020, when his office appeared to have broken the rules by revealing it had secretly indicted Thaçi himself months earlier. But the announcement, made in a press release, was published just as the Kosovan president had hopped a plane bound for a meeting with Donald Trump in the White House.

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The move, perceived by some as extremely calculated, is still shrouded with intrigue. It now appears that prosecutors were trying to stop Thaçi from using a meeting with Trump to pressure the United States to drop the case, according to a well-connected person monitoring the case who asked to remain on background.

The surprise nature of the announcement temporarily robbed the Trump administration of a diplomatic win, given that it intended to use the meeting to normalize Kosovo-Serbia relations. That created a dotted line between Trump and Smith for the first time.

But it also put the Trump intelligence chief who put together that meeting, Richard Grenell, at odds with Smith. (They’re set to be opposing each other once again. In recent months, Grenell has come out to defend Trump against various parts of the DOJ investigation, justifying how Trump kept classified documents at home post-presidency and dismissing the seriousness of Trump’s Jan. 6 insurrection.)

The second questionable incident on Smith’s watch came in the form of an embarrassing blunder—or shockingly underhanded prosecutorial gambit, depending on whom you ask.

In September 2020, highly secret prosecutorial records—printed-out communications and lists of witnesses—somehow ended up at the KLA war veterans association office. The prosecutor-hating vets group shared the documents with journalists. When at least one local TV station broadcast the names, it put a dangerously large target on the backs of witnesses. Smith’s deputy, a British attorney named Kwai Hong Ip, quit shortly thereafter. (Ip did not reply to a request for comment.)

<div class="inline-image__caption">
<p>Hashim Thaçi, center, the Kosovo Liberation Army (KLA) political chief talks at a news conference in the town of Trpeza on March 13, 1999.</p>
<div class="inline-image__credit">Oleg Popov/Reuters</div>

<div class="inline-image__caption">
<p>Hashim Thaçi, center, the Kosovo Liberation Army (KLA) political chief talks at a news conference in the town of Trpeza on March 13, 1999.</p>
<div class="inline-image__credit">Oleg Popov/Reuters</div>

Hashim Thaçi, center, the Kosovo Liberation Army (KLA) political chief talks at a news conference in the town of Trpeza on March 13, 1999.

Oleg Popov/Reuters

Smith used the opportunity to indict the war veterans group’s two leaders, Hysni Gucati and Nasim Haradinaj, who eventually got sentenced to four years in prison for obstructing the investigation, violating its secrecy, and intimidating witnesses.

The move was perceived by some as a sting operation—one that took down Thaçi’s muscle and sent a chilling message to anyone who would target a witness. But everyone who spoke to The Daily Beast about Smith acknowledged that he came out on top.

Smith spent the following two years building the cases and prosecuting them in court. He left the office last month to take on his new DOJ role as a special counsel targeting Trump.

The Justice Department declined to make Smith available for an interview.

“I have absolute respect and admiration for the man. He is very, very smart. His work ethic is extraordinary,” Schwendiman said.

Sources for this story unanimously noted that Smith’s experience combating the Kosovo hero narrative prepares him for the onslaught brought by Trump, who has used social posts and interviews with propagandists to cast doubt on the FBI’s two ongoing investigations. And several drew parallels between the challenges he faced with Albanian mob tactics and the ones he does now, as he leads the effort against an American president who has shielded himself with MAGA loyalists.

Smith, they said, is a natural fit.

“They couldn’t have picked a better person for it… Jack is a very hands-on prosecutor. He drives his staff to work very hard. He’s diligent and meticulous about detail,” Williamson said.

All eyes are now on Smith as Americans anxiously await a potential indictment of Trump, which might come in weeks, months, or not at all. But those who pay attention across the Atlantic could soon get a preview of how effective he really is. Kosovo’s disgraced former president is expected to stand trial sometime in early 2023.

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About Pete Santilli