Rebooting the "Special Counsel" Franchise
Jack Smith has entered the chat. Will he succeed where his predecessors failed?
We’ve seen this movie before.
From the Halls of Justice, a savior emerges: one with the gravitas, the authority, and the courage to take down Trump. We get our hopes up—we buy into a mythology, even—only to watch the Chosen One founder, and the criminal get away scot-free.
The first prosecutorial savior to glide down the metaphorical escalator of justice was Jim Comey. This was weird even as it was happening: Wasn’t this the same Jim Comey whose dunderheaded decision to write Congress a memo helped hand Trump the election? But it also made some sense, in an O. Henry sort of way. This was his mess; he should be the one to clean it up. And we came around. Against our better judgment, we started to believe in the guy. Remember “Comey is my Homey?”
In March of 2017, said homey was giving hush-hush briefings to various Congressional committees, presumably about Trump’s ties to Russia. After Comey briefed the Senate Judiciary Committee, resulting in one of the more notable images of 2017, I wrote: “Dianne Feinstein and Chuck Grassley [left] the meeting looking like they’d watched Hostel twice in a row:”
To those of us following the story on Twitter, that MSNBC image was a huge deal. “Obviously, those two just heard some terrifying news,” we collectively determined. “Why else would they look so shook up?” (In retrospect, they were probably just late for their afternoon nap, but trust me, it made sense at the time.) Talk about wishful thinking!
Comey did indeed drop bombshells at his hearing on March 20, 2017. He confirmed that there was a counterintelligence investigation into Trump’s ties to Russia. But he didn’t get to finish the job. He was shit-canned by the crook he was investigating six weeks later. The very next day, Trump bragged about this to the top Russian officials, Sergei Lavrov and Sergei Kislyak, he hosted in the Oval Office.
In the ensuing chaos, Jeff Sessions—Trump’s first attorney general, who had some Russian ties of his own—quickly (and smartly) recused himself. Rod Rosenstein, his spineless deputy, took time off from his busy schedule of separating refugee children from their parents at the border to name a special counsel: the retired FBI director Robert Mueller. And we were all like: well, this guy’s the real deal. He’s incorruptible. He’ll get Trump.
And we were right—to a point. Mueller was incorruptible. But that poltroonish piece of shit Rosenstein gave him the narrowest of mandates: Mueller could investigate Trump’s ties to Russia, fine, but not his money—which is like saying, “Take a closer look at Jeffrey Dahmer, but ignore all the human remains.” Also, Mueller had this notion in his head that sitting presidents should not be charged with crimes, like regular people, but rather impeached by Congress.
Worst of all, Mueller proved incapable of holding a single press conference where he could say that yes, unequivocally, there was enough evidence to indict Trump. He ran the tightest of tight ships. There was radio silence always. No one knew what the heck was going on. And we were all desperate for hopeful signs in the tea leaves. At one point in 2018, nine months or so after Mueller’s appointment, we all got super excited because [checks notes] Jeff Sessions was photographed at dinner with Rosenstein and solicitor general Noel Francisco. Seriously, this was a watershed moment, because at the time, Trump was excoriating Sessions on Twitter. Jonathan Swan at Axios wrote: “The symbolism was unmistakable: the three top ranking officials in the Justice Department appearing together in a show of solidarity on the same day Trump is publicly and privately raging about Sessions.”
Despite all the obstacles, Mueller delivered. Paul Manafort was convicted. Mike Flynn was convicted. Michael Cohen was convicted. George Papadopoulos was convicted. Roger Stone was convicted. And his final report was a blueprint for the impeachment of Trump. But Congress, for reasons beyond my understanding then or now, chose not to impeach him—Nancy Pelosi’s biggest failure in an otherwise sterling run as House Speaker.
Some of Pelosi’s reluctance was likely attributed to Bill Barr, the newly-minted Attorney General, cockblocking the Mueller Report and declining to indict Trump at DOJ for egregious obstruction of justice. Ridiculous as it seems in hindsight, there was a brief period where people on Twitter were arguing about whether Barr, as obvious a bad actor as Washington has ever produced, was a “white hat” or a “black hat.” The primary evidence for the former view was 1) a photograph of Barr and Mueller from way back when, suggesting they were chummy, and 2) someone supposedly in the know insisting that their wives were friends. Needless to say, Barr wasn’t just a black hat; as far as justice was concerned, he was a black hole.
After Mueller came and went without indictments for Trump or any of his family members, we turned our attention to New York. (Said everyone on Twitter in unison: “A president can’t issue a pardon for state crimes!”) Cy Vance, the Manhattan DA, seemed an unlikely dragonslayer, as he’d previously let Ivanka and her brothers off the hook. But his investigation into Trump’s alleged tax fraud seemed to have real teeth. He brought in a kick-ass prosecutor named Mark Pomerantz to oversee the case. But before it got going, Vance’s term ended. His successor, Alvin Bragg, almost immediately put the kibbosh on the whole thing—which was, as the kids say, sus. Pomerantz noisily resigned. And once again, Trump escaped.
Meanwhile, New York Attorney General Tish James has done real damage to the Trump Organization, but her case is civil, not criminal. Fani Willis is chugging along in Georgia. That may yet bear fruit, but it seems ridiculous for the DOJ to put the entire Trump burden on the shoulders of a county DA.
The January 6th Committee did its job, but while Congress can impeach a sitting president, it can’t indict anyone, for anything. The Constitution doesn’t grant it that power. All it can do is make criminal referrals to the Justice Department. And at the moment, the Justice Department is not exactly being run by Javert.
Remember when Merrick Garland seemed like the guy who would take down Trump? We disabused ourselves of that notion right quick, to the point that my Twitter feed for the last year and a half has been Garland apologists defending him against accusations of ineptitude, incompetence, or straight-up corruption by increasingly hostile detractors who insist that he sucks and will never lift a finger to prosecute FPOTUS—as I waffle between the two positions almost hourly. If nothing else, the appointment of yet another special counsel should stop the constant in-fighting over this tediously dull AG.
And now Jack Smith has entered the chat. So, yeah—we’ve seen this movie before. It’s basically another Batman reboot at this point.
But this time, there are some new wrinkles. It’s a guy we know nothing about, which is a breath of fresh air. He has impeccable credentials. He’s not a long-retired Republican. He was a prosecutor at The Hague. Steven Bannon and Jim Jordan don’t like him. Photographs of him from ten years ago show a baby-faced man. But the more recent picture making the rounds have him in a beard that makes it look like he was just rescued from a desert island. I joked that he looked like Captain Adamo in a remake of Battlestar Galactica. My wife said he was General Zod. Someone else tweeted that he was the new Dark Arts teacher at Hogwarts. And then there’s this:
And once again, there are reasons, good reasons, to believe. Steven Beschloss summarizes it nicely in his recent America, America column:
The widely disseminated picture of Smith (included above) from The Hague, where he’s been the chief prosecutor of war crimes committed during the Kosovo War, underscores the view of him as fearless and tough—in short, a real badass. The track record reinforces this: He’s successfully prosecuted civil rights violations and gang murders of police officers; led 100 criminal prosecutors in the U.S. Attorney’s office in New York addressing violent crimes, white collar and financial fraud and public sector corruption; supervised complex war crimes investigations in the International Criminal Court; and was chief of the Public Integrity Section of the Justice Department, which handles additional public corruption cases, including ones involving members of Congress.
Allison Gill of the Daily Beans and Mueller She Wrote, in a recent thread, outlined the many differences between the Mueller and Smith investigations. “First,” she writes, “Jack Smith won’t be working under the constant threat of being fired by a hostile AG and a dipshit president. That sword of Damocles constantly forced Mueller to walk a fine line, and that won’t be the case in this Special Counsel probe.” Plus, as she points out, there is no Bill Barr, no Rod Rosenstein, no Nixon-era memo suggesting a former POTUS can’t be indicted, and mountains and mountains of evidence and testimony.
Not only that, but Trump’s most recent crime—the theft of classified and top secret documents—is as open-and-shut as it gets. As an attorney friend of mine explained, “It’s a one-witness case. The FBI agent who performed the search. What did you find? A whole lot of documents that belonged to the government. Your witness.” So the new special prosecutor should move swiftly. Jack, be quick!
One last thing: whatever might happen, this is the final play. The chips are all on the table. The excuses to let FPOTUS slide are gone. Jack Smith will be the last special counsel. If he doesn’t indict Trump, no one will. And no pressure, but, as Gill writes, “if this Special Counsel uses prosecutorial discretion to decline to prosecute, I think we can all agree that will be the death knell of the rule of law in America.”
I make no predictions. I make no promises. I refuse to get my hopes up, or lionize Jack Smith. I’m not making his picture my social media avatar. I’m not printing clever t-shirts. But I remain hopeful. If anyone is ever going to nab Trump, it’s this dude. And Jack Smith certainly looks like the Captain Ahab who will catch the great orange whale.