Jack Smith Takes Over

The newly appointed special counsel will investigate Donald Trump's criminality in the January 6 attack and the classified documents cases. Will he act expeditiously and fearlessly as he promised?

This is prosecutor and newly appointed special counsel Jack Smith at The Hague’s war crimes court in 2020. (Photo by Jerry Lampen / AFP via Getty Images)

So Merrick Garland punted the indictment question to a special counsel on Friday, insulating himself from cries that he is acting for political reasons in two ongoing investigations: the Jan. 6 Capitol attack and the taking of classified documents and other presidential records to Mar-a-Lago. He appointed Jack Smith, a veteran prosecutor of political corruption and international war crimes cases, to pick up the mantle and determine whether charges are appropriate.

Promising “independence and accountability” and the continuation of work “expeditiously,” Garland showcased a lack of nerve in my view, allowing Trump’s announcement last week that he is running for president (read: running from the law) to sway him and delay a possible indictment. Garland said as much: “Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel.”

Adding to this hesitancy is the likely insertion of Donald Trump back into the mix on the increasingly chaotic hellscape of Twitter by Elon Musk after a bogus poll on the platform of some 15 million “people,” which surely included some percentage of targeted bots ensuring the preferred result of the billionaire oligarch. “The people have spoken,” he ridiculously claimed this weekend, justifying his decision that “Trump will be reinstated.” (Even more egregious, Musk tweeted the Latin “Vox Populi, Vox Dei,” meaning "the voice of the people is the voice of God.”)

Allowing Trump back on Twitter “ostensibly after a brief poll,” noted Jonathan Greenblatt, CEO of the Anti-Defamation League, “shows [Musk] is not remotely serious about safeguarding the platform from hate, harassment and misinformation.” So was his green lighting the return of the antisemitic Kanye West. Of course, the MAGA crowd was busy hailing Musk’s serious commitment to free speech.

It’s possible to see the naming of the 53-year-old Smith as additional bulwark against the dark forces opposed to justice and bent on pushing the usual litany of lies: Russia is a hoax, the 2020 election was stolen, the impeachment hearings were only about politics, the FBI search of Mar-a-Lago in August was the corrupt Deep State in action—and what crimes did our Dear Leader commit anyway, name one, I dare you.

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.

In 2010, questioned for his decision to not bring corruption charges against members of Congress, including House Majority Leader and Texas Rep. Tom Delay, Smith was emphatic about his role. “I understand why the question is asked,” said Smith, then chief of the Public Integrity Section, adding:

But if I were the sort of person who could be cowed—‘I know we should bring this case, I know the person did it, but we could lose, and that will look bad’—I would find another line of work. I can’t imagine how someone who does what I do or has worked with me could think that.

Lanny Breuer, a former DOJ criminal prosecutor who recruited Smith for the public integrity role, called him in a CNN interview “a person of action” who “doesn’t sit on cases” and possesses “a real sense of fairness.” And more: “If you are going to have a special counsel, in my view, and you want someone who is going to be fearless, but fair, and not going to be intimidated and not overly bureaucratic, that’s Jack—he is all of these things.”

Sounds good. Then again, we have good reason to wonder and worry that Smith, no matter how fearless he may be, may end up serving as another delay that will enable the Malignant One to avoid justice and claim he did nothing wrong, once again. In other words, Smith could be another Robert Mueller, touted as the country’s savior, yet who—amid a complicated political minefield—ultimately refused to advance criminal charges against the siting president despite two years of investigation and plenty of evidence of Russian interference in the 2016 election and obstruction of justice.

After the heroic tributes and massive promise that were attached to the arrival of Mueller, I suspect most people will be more skeptical this time—reluctant to assume Smith will succeed in bringing charges, especially with the stinging memory of Mueller and other prosecutors who ended up in the graveyard of Trump accountability. Still, Smith appears to have the necessary chops to withstand the critical onslaught from Republicans and whatever other secrets always appear just in time to scare off previously presumed killer prosecutors. He’s also not investigating a man who can hide behind the cloak of presidential immunity.

Smith was not on hand for Garland’s announcement. Described as an “insane” cyclist and triathlete by one friend, Smith was dealing with knee surgery from a bike accident in the Netherlands. But his written statement spoke to public worries. “The pace of the investigations will not pause or flag under my watch. I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”

Cue Donald Trump, serving up the usual stuff in the hours after the announcement. “It is not acceptable,” Trump whined to Fox News’ digital division. “It is so unfair. It is so political.” And later that day, draped in tuxedo, he told a black-tie crowd at Mar-a-Lago: “This horrendous abuse of power is the latest in a long series of witch hunts. The corrupt and highly political Justice Department just appointed a super-radical left prosecutor.”

Uh-huh. More of the same, old, tired assertions that, after his failures during the midterms, may not land on such receptive ears this time. Still, his new best friend Elon Musk has served up a previously useful setting to expand his attacks against the DOJ and justice itself. So far, while his Twitter account has reappeared, Trump has lingered at his own social media platform, Truth Social. But I don’t expect that to last.

I, for one, am crossing my fingers that Jack Smith really does act expeditiously in reaching his conclusions about the two biggest cases of his professional life. But after the encouraging outcomes of the midterms, the latest twists and turns—including the House GOP’s determination to prioritize Hunter Biden and his laptop—offer fresh reason to doubt that we can ever turn our total focus to making life better.

Just when signs of light appear, the malignant ones find a way to wrest back the darkness and force more unnecessary struggle. As Michael Corleone (Al Pacino) said in The Godfather, Part III, “Just when I thought I was out, they pull me back in.”

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