Former President Donald Trump already faced down one hard-driving special counsel investigation without catching a criminal charge.
But his best moves from that tumultuous episode in U.S. history won’t work against new Special Counsel Jack Smith.
That’s because Trump relied heavily on the powers of the presidency to stymie former Special Counsel Bob Mueller’s investigation into the Trump campaign’s ties to Russia, using every advantage of incumbency to thwart Mueller’s team of prosecutors and downplay their findings. Citizen Trump will have far fewer tools at his disposal to avoid criminal charges.
That discrepancy underscores the acute criminal jeopardy now facing Trump, in the wake of Smith’s appointment by Attorney General Merrick Garland on Nov. 18 to oversee two active criminal probes into events that took place at the tail end of Trump’s presidency. Smith will lead investigations into the removal of highly-sensitive government documents taken to Trump’s Mar-a-Lago club in Palm Beach, and also into Trump’s attempts to reverse his defeat in the 2020 election and the Capitol riot of Jan. 6, 2021.
Smith has worked as a prosecutor for three decades and most recently served as a specialist prosecutor based in the Hague investigating war crimes. As a special counsel, he’ll have all the powers of a regular federal prosecutor to issue subpoenas and secure search warrants, and will be governed by a special set of regulations designed to give him an extra layer of independence. If he decides to prosecute, his decision can only be overruled by Garland—and Garland must tell Congress that he did so, in a clause designed to add transparency to the investigation.
Unlike Mueller, Smith won’t be hampered by the internal Department of Justice guidelines barring the indictment of a sitting president. And Smith’s investigators won’t have to worry they might be fired at any moment, a fear that hung over Mueller’s team during its entire two-year probe.
Thanks to Garland’s support, Smith won’t have to fret that the final report of his investigation might be buried and misrepresented—the fate that befell Mueller’s report at the hands of former Attorney General William Barr.
The difference means Smith will have much more freedom to act if he decides to prosecute a former president for the first time in U.S. history.
And for Trump, that makes Smith all the more dangerous.
Above the Law No More
While he was president, Trump dispatched his lawyers to argue that he was absolutely immune to criminal law while serving as commander in chief.
“The president is not to be treated as an ordinary citizen,” Trump’s then-lawyer Jay Sekulow told the Supreme Court in May 2020. Therefore, he continued, a “criminal process targeting the president is a violation of the Constitution.”
Trump lost that particular argument over whether a state prosecutor could access copies of his financial records. But when it came to potentially facing a federal criminal charge, Trump’s grandiose position prevailed.
That’s because an internal Watergate-era Department of Justice memo dating back to 1973 holds that charging a sitting president with a crime would unduly interfere with the functioning of the entire executive branch.
As a result, this memo—which, more or less, amounts to an internal Department of Justice policy, rather than a law or provision of the Constitution—protects sitting presidents from being indicted by federal prosecutors.
Mueller himself stated that charging a president would be “unconstitutional,” even though plenty of legal scholars (including the late former independent counsel Ken Starr) argued that the Constitution appears to allow for the prosecution of a sitting president.
As a result, Mueller decided not to charge Trump, and not even to state conclusively whether he believed that Trump broke the law, because Trump would not have the ability to clear his name at trial.
Mueller’s decision to rely on the memo likely saved Trump’s bacon, because his report laid out enough evidence to charge Trump with obstruction of justice, according to a public letter signed by over 1,000 former prosecutors.
Mueller’s refusal to make a decision left the door open for Barr to state explicitly that, in his view as Attorney General, Trump did not break the law.
Barr then released his own misleading summary of Mueller’s findings and held the more-damning report itself secret for almost a month.
Mueller’s team also restrained themselves for fear that Trump might try to have Mueller fired and the investigation squashed, according to Andrew Weissmann, one of Mueller’s top former deputies.
“The specter of our being shut down exerted a kind of destabilizing pull on our decision-making process,” Weissmann wrote in his book about the investigation, Where The Law Ends.
Smith, however, won’t face any of these restrictions.
Smith has big advantages over Mueller, Weissmann wrote on Twitter.
“The new Special Counsel, unlike Special Counsel Mueller, WILL be able to indict Trump as he is no longer [President of the United States] and WILL NOT have to worry about being fired from one day to the next by sitting POTUS,” Weissmann wrote. “And he inherits a large amount of evidence and a team that is in place already.”
That inheritance of evidence is important.
Some of Trump’s critics have openly worried that the appointment of special counsel Smith will slow the probe down and lead to an unnecessary reshuffling of personnel or bureaucratic hold-ups.
But Smith promised in a brief, emphatic statement after his appointment that this would not be the case.
“The pace of the investigations will not pause or flag under my watch,” Smith said. “I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
And there are plenty of signs of recent activity.
Former Trump advisor Stephen Miller testified before a federal grand jury investigating the events of Jan. 6 on Tuesday, CNN reported, making him the first top-ranking former Trump aide to make an appearance since Smith’s appointment.
The Department of Justice is also seeking to question Trump’s former Vice President Mike Pence as part of its investigation into Trump’s attempts to stay in power, according to the New York Times.
Now, Smith will have to contend with another of Trump’s favorite defense mechanisms: Vilifying his investigators.
Trump has repeatedly trashed Smith on Trump’s own social media network, Truth Social—just as he did with Mueller’s team during the 2017-2019 Russia probe.
“Jack Smith is nothing more than a hit man for [former President Barack] Obama,” Trump wrote last week.
Smith hasn’t responded to Trump’s taunts.