The new sheriff in Washington has his scandal cut out for him
Jack Smith is the newly appointed special counsel to lead an investigation into Donald Trump. History shows the job holds huge political consequences for himself, the former president and the US. By
In earlier political scandals in America from the 1970s onward, independent prosecutors have been tasked with addressing potentially illegal behaviour by executive branch officials in scandals that have threatened the nation’s political life.
Though most people tend to connect the resolution of the “Watergate scandal” in 1972-1974 with investigations and revelations in Congress and by the media, it is important to remember that reining in politicians and their henchmen also came about owing to the work of an independent prosecutor in bringing malefactors to book.
In 1973, under growing public pressure as a result of media revelations about Richard Nixon’s re-election campaign committee, his administration reluctantly agreed to the appointment of an independent prosecutor in the person of Archibald Cox. He was tasked with following the evidence and moving forward to indictments, prosecutions and trials, should they be necessary in dealing with lawbreaking by presidential staffers and campaign committee figures.
The infamous “Saturday Night Massacre” came about when both Nixon’s attorney general and his deputy refused to fire Cox for his zealous pursuit of those possible crimes, and both were then fired by the president. The solicitor general, Robert Bork, the third-ranking Department of Justice official, finally agreed to do the deed.
But such was the pressure around the scandal that a second independent counsel, Leon Jaworski, was appointed in Cox’s place. Ultimately, Jaworski’s investigations were instrumental in bringing down Nixon. The president resigned just ahead of an almost certain impeachment and conviction.
In the years following Watergate, a number of independent counsels to investigate political mischief were appointed, until the law that had provided for such appointments was changed.
Under the old independent counsel statute, two independent counsels, Lawrence Walsh and Kenneth Starr, had been appointed by the judiciary, rather than through justice department processes, as is now the case for special counsels, the new office created in place of independent counsels. That independent counsel law had been revoked following the fiasco of Starr’s investigation of Bill Clinton.
Special counsels are specially designated justice department officials who report to the attorney general, and who operate outside a normal departmental chain of command. More recently, Robert Mueller, who investigated the possibility of links between Russia and Donald Trump’s presidential campaign, and John Durham, who examined potential malpractice by the FBI in connection with such investigations, were special counsels.
Asked about the practical difference between the old and current counsel law, an American lawyer friend explained that independent counsels, by virtue of their appointment processes, had had more freedom, but they undertook what effectively seemed to be fishing expeditions and probes of matters only tenuously connected to the charges they had been appointed to investigate.
In present circumstances, special counsels, in theory, are on a shorter leash than those independent counsels had been, but that may be more theory than actual fact, assuming the responsibility and tasks of the appointee’s role are made clear from the outset of the appointment.
On 19 November, the Biden administration’s attorney general, Merrick Garland, determined that a special counsel was necessary to address two issues regarding the former president’s behaviour. The primary tasks for the new special counsel, Jack Smith, will be, first, potential violations of federal law by virtue of any complicity by Trump over the mob insurrection that tried to seize the Capitol Building and obstruct the formal certification of the incoming president after his election; and second, whether Trump had violated the law by removing top secret government documents from the White House and storing them inappropriately – and dangerously – at his Mar-aLago complex.
It is important to note that these investigations are distinct from the deliberations of the House of Representatives’
select committee on the events of 6 January 2021, the examinations by Congress of Trump’s tax returns, and other legal actions pending against him in Georgia and New York, among other cases.
Before Smith took this assignment, he had been a prosecutor assigned to the International Criminal Court in The Hague. On accepting this new assignment, Smith said in a written statement: “I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice. The pace of the investigations will not pause or flag under my watch. I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
When Garland made the announcement on 19 November, he said that appointing a special counsel who will manage the investigations independently would be in the public’s best interest. This was owing to developments such as Trump’s announcement that he is running for president again in 2024, as well as President Joe Biden’s statements that he also intends to run.
Commenting on his appointment, CNN noted that Smith’s “experience and resumé will allow him, at least at first, to fly underneath the type of political blowback that quickly met former special counsel Robert Mueller’s team.
It also shows he is adept at managing complex criminal cases related to both public corruption and national security – and that he has practice making challenging decisions with political implications.”
Given the highly politicised nature of any discussion around possible charges brought against a former president, and especially the inevitable angry howling from the members of the MAGA cult, Smith is going to need every bit of his experience as a bureaucratically astute and seasoned prosecutor to move forward without becoming enmeshed in partisan rancour. This will become especially true if and when he deems it necessary to recommend charges against Trump.
I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice