Special Counsel Appointment to Examine Everything Trump

Can Special Counsel Jack Smith Deflect the Slings and Arrows of Trump and Hold Trump Legally Responsible for the January 6 Insurrection and the Stealing of National Security Documents?

My initial reaction to Attorney General Garland’s appointment of Jack Smith as special counsel to investigate the January 6 Insurrection, phony electors, Trump’s taking national security documents and other things was this was an attempt by Garland to pass the buck. After at least a year of DOJ investigations, why do we need a special counsel? Garland said this would remove the investigations from politics, but that was a naive statement and disproved within two hours by Trump announcing that the appointment of a special counsel was a political attack on Trump. After all in Trump’s view there is nothing binding him to follow the law because he is Donald Trump, so any investigation must be a political attack.

So Garland’s rationale did not hold water as was obvious with Republican attacks on the Justice Department and Senators like Ted Cruz saying that DOJ was politicized.

Garland has impressed me as being timid and overly cautious and not of the type we need to prosecute someone like Trump who will dodge and weave, delay and obfuscate and do anything to avoid a final conclusion.

It is not clear whether the Special Counsel could obtain an indictment and prosecute without concurrence by AG Garland, but if Garland’s concurrence is required, the appointment of a Special Counsel does nothing but add another layer of bureaucracy to any decision to prosecute Trump or his cohorts and sycophants.

But on further reflection I think the appointment of Jack Smith as Special Counsel could be positive if he is given adequate staffing for the immense job ahead. News reports said he would take over the DOJ attorneys already working on the DOJ Trump investigations. One assumes the assigned FBI agents would also be continue to work on all things Trump. But staffing needs to be clarified. Will Special Counsel Smith have the resources necessary to take on Trump and his colleagues? That is not clear.

Special Counsel Mueller had plenty of resources, but his investigation was a bust due to his strict allegiance to Justice Department policies, of dubious validity, on limiting any prosecution of a sitting president. Mueller’s investigation was far more limited that we speculated, e.g. he never looked at Trump’s business dealings and finances though most thought he was doing so. Mueller’s investigation turned out to be a waste of money and a fiasco.

Then there is Special Counsel John Durham , who was assigned by Bill Barr to investigate the origins of the DOJ Trump investigations and the Russian actions to promote Trump because Putin knew he could control Trump. But Durham’s two prosecutions have failed, and hopefully he will tie up his retaliation agenda and retire.

Of course, we remember the crusade by Special Counsel Ken Starr to look into every corner of Clinton’s existence, starting with a failed Whitewater investment and expanding it to include everything he could find and ultimately hours and hours spent on the Monica Lewinsky investigation.

With this history of Special Counsel investigations, one can only pause at the appointment of yet another Special Counsel.

But I would argue that if Jack Smith is the aggressive, independent prosecutor, as has been stated by colleagues, his appointment may breathe real life into an investigation that should have started two years ago after the tragic January 6 insurrection. January 6 occurred in plain view on television and apparently provided entertainment for then President Trump since he did not want to stop it. From all one can tell by the public record and DOJ begging the January 6 Committee to share their evidence, DOJ did not actually start the investigation of Trump and his co-conspirators until the end of 2021.

DOJ focused on the Insurrectionists who went into the Capitol, and their prosecutions are justly deserved, but until the beginning of 2022 DOJ seemed to ignore the organizers, instigators and leaders of the January 6 Insurrection including the president of the United States who tried to effect a coup but was unable to do so.

Only the actions of Vice President Pence in refusing to go along with Trump’s plan to reject legitimate votes from certain swing states and to appoint Trump’s phony electors saved us from a true constitutional crisis.

Now if I and some of my friends held a rally near the White House and urged our armed supporters to march to the Capitol and stop the certification of the election of the President, using force and strength to do so and resulting in deaths and injuries to police and media representatives, I would have been arrested within 24 hours and charged with various crimes including sedition and instigating a deadly riot.

But it does not appear that Garland organized DOJ and FBI resources to investigate Trump and his co-conspirators of January 6. Their focus was on the hooligans who broke into the Capitol creating mayhem in response to Trump’s invitation for them to do so.

Only recently has their been reporting of possible presentations to a grand jury involving the masterminds of January 6.

So assuming that this is the actual record of AG Garland slow walking the investigation of Trump, the appointment of Special Counsel Smith may breathe life and energy into a prosecution of the January 6 leaders that should have been started on January 7, 2021. We can only hope that Jack Smith is as good as the biographies and colleague commentary say he is.

Garland should make clear whether Smith can initiate prosecutions without Garland’s concurrence or whether Smith has to obtain Garland’s agreement before any prosecution can be initiated. The latter is probably the case.

Trump is already organizing Republican members of Congress to attack the new Special Counsel, and Mr. Smith will need a strong backbone to withstand the Trump and allies assault.

But I wish the very best to Jack Smith for agreeing to take on this highly important and consequential task, the conclusion of which will really determine whether presidents and his allies are subject to the rule of law.