JONATHAN TURLEY: Jack Smith’s secret surveillance of Patel and Wiles should alarm us all

Former Special Counsel Jack Smith has long operated under the Irish poet, playwright and novelist Oscar Wilde’s rule that "the only way to get rid of a temptation is to yield to it."

Over the last few months, the public has learned of a wide array of secret orders targeting members of Congress, Trump allies and others. Now, the Trump administration has learned that FBI Director Kash PatelKash Patel and White House Chief of Staff Susie Wiles were also targeted by Smith in 2022 and 2023 when they were private citizens.

Smith was a controversial choice as special counsel because of his history of aggressive legal arguments and tactics, including his unanimous loss before the Supreme Court in the case that overturned the conviction of former Virginia Gov. Robert McDonnell.

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His tendency to stretch the law to the breaking point also did not play well with juries in high-profile cases, including his case against former North Carolina Sen. John Edwards, who was accused of using campaign funds to hide an extramarital affair. That case ended in an acquittal.

Despite such criticisms, Smith immediately returned to his past pattern of tossing aside any restraint or caution. Even Democrats earlier this year expressed objections to his targeting of Republican members of Congress, including former House Speaker Kevin McCarthy.

Smith told carriers not to tell members of Congress that their calls were being seized. Not only did such records reveal potentially confidential sources, ranging from journalists to whistleblowers, but Smith's gag order prevented Congress from responding to or challenging the allegedly abusive demand.

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Now, the Trump administration is alleging that Smith and the prior Biden administration effectively buried the targeting of Patel and Wiles. It took a year into the new Trump administration for these orders to be uncovered.

The early accounts of the orders contained equally disturbing elements. Reuters reported that "In 2023, the FBI recorded a phone call between Wiles and her attorney, according to two FBI officials. Wiles’ attorney was aware that the call was being recorded and consented to it, but Susie Wiles was not."

It is astonishing to hear of a lawyer agreeing to the FBI recording of an attorney-client conversation as a general matter. However, recording such a call without informing the client would be a breathtaking invasion of protected communications.

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There is much we still do not know.

On its face, these orders appear consistent with the earlier allegedly abusive demands. Smith had virtually no basis for targeting Republican members and Trump allies. It was a fishing expedition in which Smith simply compiled lists of every well-known ally of President Donald Trump.

There are also concerns over the response to this controversy. There are reports of 10 FBI employees being fired. Agents often carry out the orders of superiors in such investigations. The administration should assure the public that these agents were afforded due process before being ousted for their roles in carrying out orders.

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The recently disclosed files from these investigations are an indictment of Smith himself. He was given a historic mandate to investigate a former president. Rather than exercise a modicum of restraint to show the public that this was not a partisan effort, Smith yielded to his worst temptations in targeting a long list of Republicans.

In his prior testimony, Smith offered little to justify these orders beyond a shrug that such secret orders routinely occur. However, he was targeting a "who’s who" of top political opponents of President Biden and the Democrats.

To make matters worse, Smith struggled to release damaging information — and even schedule a trial — on the very eve of the 2024 presidential election. Every action by Smith only magnified the perception that he sought to influence the election. He became a prosecutor consumed by his antagonism toward Trump and his unchecked power.

Nothing was sacred for Smith. His demands in the investigation from the courts included a wholesale attack on free speech principles.

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Ultimately, these files are not only an indictment of Jack Smith but also of former Attorney General Merrick Garland, who failed to exercise his authority to oversee Smith and protect core constitutional values.

It is essential that Congress and the Trump administration fully investigate Smith's surveillance demands. Smith has long demanded accountability for others while evading such accountability for his own actions.

If past orders are any indication, the Patel and Wiles orders were likely based on sweeping generalities and demands for absolute secrecy. That is the signature of Jack Smith. Indeed, Smith appears to have replicated his increasingly infamous record, with the collapse of two high-profile cases and lingering questions over his judgment and actions.

He has again yielded to his temptations — and the public has paid the price.