Investigate Jack Smith? Yes. Prosecute him? I don't think so.

The Washington Post frets that with the Republicans soon to be in full control of Congress and (some) control of the Department of Justice, Jack Smith is likely to come under investigation and maybe punishment:

Even as Jack Smith moved to wind down his federal election interference case against Donald Trump on Friday, House Republicans took an initial step toward investigating the special counsel, setting up an early test of how the president-elect’s calls for retribution will play out.

House Judiciary Chairman Jim Jordan (R-Ohio) and Rep. Barry Loudermilk (R-Georgia) asked Smith’s office to preserve all records of the historic classified document and election interference probes, a routine first step in congressional inquiries, law enforcement investigations and litigation. Elon Musk, the X owner who spent more than $100 million boosting Trump’s campaign, responded to the House Republicans’ letter by posting, “Jack Smith’s abuse of the justice system cannot go unpunished.”

The criminal prosecution of either a former U.S. president or a leading presidential candidate was unprecedented and fraught. Smith prosecuted a guy who was both.

I’m not saying that such a prosecution should never take place or even that it shouldn’t have occurred here. But the implications of this kind of prosecution for the democratic process, including the peaceful transfer of power (as Bill has pointed out), are profound. Before prosecution of political opponents and enemies becomes the norm in America, Justice Department officials should understand that their actions are not immune from scrutiny.

Such scrutiny can come from Congress or from the Department of Justice itself. In this case, if the Post’s reporting is accurate, it’s likely to come from both.

A congressional investigation of Jack Smith is a double-edged sword. Unless Republicans run a kangaroo court like the House January 6 Committee, both sides will have a say. The Post warns:

Democrats in Congress on Friday welcomed Jordan’s missive, arguing that laying bare Smith’s work will only highlight wrongdoing by Trump. Democratic staffers involved with congressional investigations said it’s likely that Jordan and committee investigators will call on Smith to testify, as they have in the past, as a part of the investigation — a prospect they welcome.

“That’s exactly the hearing Democrats would have had in the majority,” one of the staffers said, speaking on the condition of anonymity to describe private talks. “Why would you call in Jack Smith to do the trial of the century but in Congress? It’s a gift to Democrats. … Call him in three times. That seems great.”

I don’t know which side would benefit more from a congressional investigation of Jack Smith’s investigation and prosecution of Trump. It looks like we’re going to get that investigation, though. The hearings should make for good theatre.

The prosecutions are also likely to be examined by the Justice Department. Responsibility for that internal investigation presumably would rest in the first instance with attorneys in the Office of Professional Responsibility. I would expect these career attorneys to give Smith the benefit of the doubt.

That’s not likely to sit well with the administration. I can easily imagine Trump leaning hard on the Attorney General to override the career attorneys and go after Smith. As discussed below, however, the DOJ will be hard pressed to do than write a report that’s critical of Smith and maybe punish a few of Department attorneys.

We might have a better idea of how this process will play out once Trump picks his Attorney General and he/she testifies before the Senate.

This much seems clear:, however. If there’s a congressional investigation, the DOJ will cooperate with Congress. As it should.

What about punishment for Smith? As noted above, Elon Musk says he wants it. Similarly, Trump adviser Mike Davis says that Smith should be subjected to “a criminal probe.” Trump himself said that Smith “should be thrown out of the country,” a non-starter as Trump surely knows.

I don’t know what the various investigations of Smith will reveal, but right now I see no basis for the view that Smith committed a crime. I expect, though that Trump will pressure the new Attorney General to concoct some kind of indictment. If Smith were to be indicted, the odds against a conviction would likely be overwhelming.

If Smith violated any ethical rule, the normal remedy is through whatever bar associations he belongs to. It’s likely that complaints will be filed with the relevant bar[s].

But there’s virtually no chance Smith will be disbarred or otherwise punished by a bar association. Even if he did violate an ethical rule, bar associations are run by Trump-haters. Whatever the merits, they are more likely to give Smith an award than to punish him.

A part of me would like both sides to move on, rather than relitigate Trump’s behavior — in some cases appalling e.g. hiding documents he was legally required to produce from the FBI — and Smith’s conduct — in some cases overreaching, e.g. the D.C. case. But as I said, the Trump prosecutions are a worthy subject of investigation because prosecutions of leading presidential candidates and former presidents have such major implications for our democratic system.