Yes to a Special Counsel, No to This One

Earlier this month, the Attorney General appointed attorney Jack Smith to be the Special Counsel who will conduct the investigation of Donald Trump’s potential federal criminal liability on at least two fronts: The removal and handling of documents (some classified) from the White House, and the former President’s role in fomenting the Capitol riot on January 6.

Appointing a Special Counsel was the right move. The Justice Department, like every other executive agency, is overseen by Joe Biden, Trump’s once and possibly future opponent for the White House. Trump is the most politically radioactive figure in the country, a good deal of which hates him. The hatred is concentrated in the Democratic Party (although it exists elsewhere as well), of which Biden is the leader. It is thus wise to try to insulate the Justice Department, to whatever extent is possible, from the reality or perception that a Trump prosecution will be politically influenced. A truly independent appointment would have helped to at least some degree — a figure like Michael Mukasey, who is known as a man of integrity not out to get Trump. The person chosen, veteran DOJ prosecutor Smith, seems to have the technical competence and experience for the job, but his overall background poses too many questions. If Trump does get indicted, those questions will certainly haunt the prosecution — a prosecution that is sure bitterly to divide the country in any event, and therefore one whose non-political character is urgently in need of cementing. Smith’s appointment falls well short.

This is so for several reasons. The first is this, reported by the New York Post: “Trump special counsel’s wife worked on Obama film and donated to Biden.” The story notes:

The wife of newly appointed special counsel Jack Smith is a filmmaker who produced a movie about former first lady Michelle Obama and donated to President Biden’s 2020 campaign. 

Katy Chevigny is credited as a producer on “Becoming,” a 2020 documentary about Obama, and Federal Election Commission records show that she donated $2,000 in support of Biden’s presidential run that same year. 

“Becoming” centered on the former first lady’s 2019 book tour promoting her memoir of the same title. Big Mouth Productions, where Chevigny is employed as a director and producer, is listed as one of the production companies that worked on the film. 

Chevigny and Big Mouth Productions also worked on the 2018 documentary titled “Dark Money.” The film is described as a “political thriller” that  “takes viewers to Montana – a front line in the fight to preserve fair elections nationwide – to follow an intrepid local journalist working to expose the real-life impact of the US Supreme Court’s Citizens United decision.” 

Big Mouth Productions is also listed as Chevigny’s employer on FEC filings that show her donations to Biden’s campaign. Records show she donated $1,000 to Biden for President and another $1,000 to the Biden Victory Fund in September of 2020. Chevigny also made seven other $10 donations to ActBlue, a Democratic fundraising platform, and to MoveOn.org’s political action committee in 2010. 

Are the obvious and strong political sympathies of Mrs. Smith automatically to be attributed to her husband? No they are not. But “automatically” isn’t the test for something this sensitive and incendiary. Mrs. Smith is all too reminiscent of the wife of former FBI Deputy Director Andrew McCabe, who was knee-deep in the soft-peddled (to use a charitable phrase) investigation of Hillary Clinton’s email games when she was Secretary of State. McCabe’s wife, Jill McCabe, was a Democratic candidate for the Virginia state senate, and received a massive donation from a close Clinton ally. Under those circumstances, Andrew McCabe should have been nowhere near the Hillary investigation. The same is true, for the same reasons, of Jack Smith now.

But regrettably there is more. The people who rushed to praise Smith are, ummmmmm, notable. Hence, as noted in that reliable Trump-bashing bellwether, the Dail Kos:

While some legal observers wished Garland had simply made the call himself, Smith was generally embraced as a good choice for the job. Notably, he has not been charged with recreating the work already undertaken by Justice Department prosecutors.

"Jack Smith is a solid pick," tweeted Joyce Vance White, a law school professor and MSNBC legal analyst. "His experience as specialist prosecutor for Kosovo suggests he can move into a serious, difficult ongoing investigation, run with it, & indict cases that should be indicted."

Highly regarded constitutional law scholar Laurence Tribe said he could think of "no one better suited" for the job, and former member of the Mueller team Andrew Weissmann added that Smith is a "very aggressive prosecutor who represents the best of the Department."

When a special counsel assigned to the potential prosecution of Donald Trump is robustly praised by (1) the MSNBC “legal analyst,” (2) Laurence Tribe and (3) Andrew Weissmann, your antennae have to go up. The Weissmann endorsement of Smith as “very aggressive” is particularly alarming; Weissmann was widely regarded as something of the “mad dog” of the Mueller probe, and had a reputation in the US Attorney’s Office before then of being particularly hard-edged and envelope-pushing. Those are not necessarily bad traits per se in a prosecutor; the world is full of clever and rapacious criminals, and bringing them to account is not a job for the faint-hearted. But they are less than optimal traits for the special counsel in a politically loaded case, where what is most called for is prudence, maturity and judgment.

The third reason to view Jack Smith as a problematic person for this job is his own record of envelope-pushing prosecutions of political figures. Thus, as the NYT reports in a decently fair and comprehensive story:

[In 2015], prosecutors supervised by Mr. Smith won a corruption conviction against former Gov. Bob McDonnell of Virginia, a Republican. Along with his wife, he was found guilty of trading favors in return for $177,000 in loans, vacations and gifts from a wealthy family friend who was trying to promote his vitamin supplement business.

But the next year, the Supreme Court unanimously overturned Mr. McDonnell’s conviction in a ruling that narrowed the scope of what favors can justify corruption charges and led to convictions being overturned in several other cases.

While at the time there may well have been a plausible theory of criminal liability against Gov. McDonnell (I thought so, to be honest), you have to go some to lose all nine votes.

And then there was Smith’s botched 2012 prosecution of a former North Carolina Senator:

[Smith’s DOJ] section lost a campaign finance case against John Edwards, the former Democratic senator of North Carolina and 2004 nominee for vice president. A jury acquitted Mr. Edwards on one charge and failed to reach a verdict on five others.

At the time, Melanie Sloan, then the director of the Citizens for Responsibility and Ethics in Washington, said that the Justice Department deserved “to get slammed” for undertaking a risky prosecution against Mr. Edwards that relied upon a novel interpretation of campaign finance laws, even as it shied away from more traditional corruption cases.

“The cases that they are deciding to prosecute, and not prosecute, reflect an incoherent strategy,” she said. “At some points, they are willing to be incredibly aggressive, like with John Edwards, and on the other hand they are overly cautious in refusing to prosecute people like John Ensign and Don Young.”

All-in-all, the picture one gets of Jack Smith is that of a well-educated (Harvard Law) and experienced prosecutor, but one with too many questions about his political leanings, temperament, maturity and legal judgment to be running what is likely to become the most scrutinized and controversial prosecution in the country, and one with possibly very profound influence in the next Presidential election.

With all respect to Mr. Smith, it should have been someone else.