On Friday, Nov. 18, just three days after former President Donald Trump made his 2024 White House run official, Attorney General Merrick Garland announced the appointment of a special counsel to determine whether Mr. Trump should be charged in connection with Department of Justice investigations. The man tapped for the job is Jack Smith, a veteran prosecutor with an extensive resume who, most recently, had been working at The Hague in the Netherlands, investigating war crimes in Kosovo.
Regardless of whether one believes Smith’s appointment is necessary or appropriate, this is surely not a good look for either the DOJ or the Biden administration. The very credibility of the special counsel position has taken a beating over the past six years. Robert Mueller took up that mantle for a drawn-out investigation of Trump’s alleged “collusion” with Moscow to influence the outcome of the 2016 presidential election. In the end, Mueller produced no conclusive evidence to support the claims made against the 45th president. The entire endeavor was viewed by maybe half the nation – or more – as a politically motivated witch-hunt; an attempt to damage and delegitimize Trump’s presidency.
Ironically, another special counsel, John Durham – who is still at work – uncovered enough evidence to show, in the eyes of any fair and objective observer, that the Trump-Russia collusion story was a hoax. Worse still, that hoax – that attempted framing of Trump – originated with the campaign of his 2016 opponent, Hillary Clinton.
As for Durham, he too has met with scant prosecutorial success. Even though he managed to expose what amounted to a conspiracy between the Clinton campaign, the media, and a motley assortment of Trump-hating individuals against Joe Biden’s predecessor, Durham’s appointment was also viewed – this time by the left – as politically driven.
A Doomed Special Counsel?
Thus, Mr. Smith is doomed to be tarred with the same brush. Garland will also be viewed by most conservatives and Republicans, as having done the bidding of his boss in the White House – whether that is a fair assessment or not. It could well be that the attorney general considered this the only appropriate way forward. That doesn’t alter the fact that appointing another special counsel to investigate Trump - once again – is fated to stir up only more distrust on the right. The perceived objectivity of the DOJ is on the line and, although a special counsel would seem to be the correct way to proceed, now that Trump is a presidential candidate, the recent history of special counsels shows that this is not how it will be viewed by the millions who still support Donald Trump. Garland truly is between a rock and a hard place, on this occasion – except that many would argue there are no legitimate grounds for investigating Trump at all.
Unveiling the appointment of Mr. Smith at a DOJ press briefing, AG Garland explained:
“I am here today to announce the appointment of a special counsel in connection with two ongoing criminal investigations that have received significant public attention. The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or the certification of the electoral college vote, held on or about January 6, 2021.
“The second is the ongoing investigation involving classified documents and other presidential records – as well as the possible obstruction of that investigation, referenced and described in a pending court matter in the Southern District of Florida.”
Pandora’s Box
Jack Smith is a former head of the DOJ Public Integrity Section. He has been involved in several high-profile prosecutions of elected officials. Those include a former Republican governor of Virginia, Bob McDonnell, whose conviction was later unanimously overturned by the Supreme Court, and Rick Renzi, a former Republican representative from Arizona. Renzi was convicted for insurance fraud, bribery, extortion, racketeering, and money laundering. On his last day in office, Trump pardoned Renzi.
The whole business has now become a political minefield. Smith is, for all intents and purposes, under the gun to complete his work before the 2024 primary season. After all, it would be unthinkable for Trump to win the GOP presidential nomination – which is not certain but very likely – and then be criminally charged by the DOJ with a Democrat in the White House. The consequences for the country are potentially devastating. So, the special counsel effectively has 16 months to make a case against Trump or to dismiss it.
As for the 45th president, he was quick to issue a response rejecting cooperation with Smith’s investigation. He told Fox News:
“I have been going through this for six years – for six years I have been going through this, and I am not going to go through it anymore, and I hope the Republicans have the courage to fight this.
"I have been proven innocent for six years on everything – from fake impeachments to Mueller who found no collusion, and now I have to do it more? It is not acceptable. It is so unfair. It is so political.”
In politics – particularly in this information age – perception is everything. There are no good outcomes to this scenario. If Mr. Trump is finally convicted of an alleged crime, outrage on the right may cause the United States to suffer a wound from which it cannot recover – not for a very long time, anyway. On the other hand, should Smith ultimately recommend no charges be brought, Americans on the left of the divide, who will no doubt pin their hopes upon prison time for the former president, just as they did in the past, will be equally incensed – and the country has already witnessed what that means. All anyone can hope for is justice, but, in these times, justice means different things to different people. Political opinions aside, what Jack Smith has been handed is a Pandora’s box.
