Stepping Into the Next Storm

By Rafael Hoffman

Donald Trump’s time in the spotlight of the American political scene has been accompanied by near-constant investigations by the Department of Justice. Before he took office, wheels were in motion scrutinizing accusations that his campaign had colluded with Russia, eventually leading to Robert Muller’s appointment as special counsel. The Muller investigation dug up a set of unrelated wrongdoings by Mr. Trump’s associates but established no evidence of the alleged act it was intended to uncover, leading many to suspect its origins and the DOJ’s motivations.

Over the past year, two other investigations have kept Mr. Trump in the news: one focused on possible crimes he and his team committed in the aftermath of the 2020 elections, the other about government documents kept in his Florida home in Mar-a-Lago.

As the Congressional committee investigating the January 6 riots winds down, it is expected that its final report will call for some sort of charges to be filed against the former President and some who advised him. That and ongoing developments in the classified documents case have led the public to suspect that politically explosive incitements might be in the works at the DOJ. All this comes as Mr. Trump ended two years of speculation and officially announced his candidacy for the 2014 presidential contest.

Attorney General Merrick Garland’s response was to punt the investigations from under his direct watch and appoint Jack Smith as special counsel.

“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,” said Mr. Garland. “Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters.”

Mr. Trump was not impressed.

“Here we go again!” he said in a social media post. “The Democrat Department of ‘Justice’ had nothing, except Trump haters, so they just appointed a Special Prosecutor to go after me further. Disgraceful!”

As Mr. Smith takes up what will doubtlessly be a fraught task, the public waits to see what actions he will take in two cases the country already knows a great deal about.

Appointment

Even before Mr. Smith has taken any action on either case, his appointment was the subject of criticism. Some on the right questioned the need for a special counsel. Citing what they see as the lack of criminal actions, they view the appointment as part of an effort to keep negative coverage about the former President in the news rather than a serious investigation. Some on the left were equally critical, claiming that the appointment would slow down what they view as overdue efforts to bring Mr. Trump to justice.

Mr. Smith himself said that while he pledged independence, “the pace of the investigations will not pause or flag under my watch.”

Between the work of the January 6 committee, press statements, and leaks in both cases now under the special counsel’s purview, the public is roughly aware of the facts that would likely form the basis of any possible prosecution.

Still, Josh Blackman, professor at South Texas College of Law, said that the justification of the special counsel’s appointment is hard to judge because it might be based on what the public does not know.

“It’s precisely [the fact that] we don’t have the information that makes it hard to answer whether this was a good decision or not,” he said. “If all there is is what the public knows, then Garland should have been able to do it himself, but there might be other information.”

Special counsels have typically been appointed when the DOJ was charged with investigating a part of the government or a sitting administration, as was the case in the Iran-Contra investigations during the Reagan years and the Whitewater probe during the Clinton administration.

Seth Barrett Tillman, a law professor at Maynooth University in Ireland, who teaches and writes on American constitutional law, felt that Mr. Trump’s private status made Mr. Garland’s decision to appoint a special counsel questionable.

“The usual reason for a special counsel is an internal conflict — the fact or impression that the government is investigating itself. Trump is a private citizen. If the DOJ is doing this in order to insulate itself from political heat and accountability, from House Republicans or the media, that’s not a good reason to appoint a special counsel,” he said.

Professor Tillman added that the abundance of public information about the cases added to his skepticism of the rationale behind the special counsel’s appointment.

“The Biden administration has had two years to bring charges. If they haven’t, I have to believe that the administration’s professional prosecutors don’t think the evidence known to the public is sufficient to bring a case they can win,” he said. “It looks like what they have is barely enough to keep on investigating, and that they don’t want to take the heat for not going forward with a prosecution.”

The Task at Hand

Special counsels in American government date back to when Ulysses S. Grant appointed one in 1875 to investigate the Whiskey Ring scandal, where a group of distillers collaborated with Treasury officials to evade taxes. Their modern era began when Archibald Cox was tapped to lead the Watergate investigations that ultimately brought down the Nixon presidency.

In many instances, probes meandered into unrelated matters, leaving administrations with new scandals other than the ones originally explored, as was the case during the Whitewater and Muller investigations. Those stories illustrate the open-ended nature of a special counsel’s office.

“[Smith] gets as much time and money as he needs,” said Professor Blackman. “If, as it seems, we are headed for an indictment, the preliminary court actions alone could take years.”

Though the purpose of the special counsel statute is to distance investigations from the government, revisions to the clause by Clinton Administration Attorney General Janet Reno emphasized that the appointee’s work, decisions, and conclusions are subject to review and approval by the Attorney General. Many observers posited that Mr. Smith’s appointment signals that the DOJ was headed toward an indictment and was eager to separate itself from the decision. However, the choice of whether to move ahead with charges is still up to Mr. Garland.

“[Smith] still reports to the Attorney General,” said Clark Neily, senior vice president for legal studies at the Cato Institute. “Ultimately, it’s the Attorney General’s decision, but since the whole point of the statute is to make these decisions apolitically, absent a fairly clear abuse of power, I would expect [Garland] to stay away.”

The DOJ’s choice of Mr. Smith elicited praise from many former colleagues who cited his professionalism, thoroughness, and tenacity. Some critics questioned his allegedly apolitical status, pointing to his work with the IRS when the organization was found to be targeting conservative groups during the Obama administration. Additionally, Mr. Smith’s wife produced a documentary film on former First Lady Michelle Obama and donated to several Democratic campaigns.

Professor Blackman said that these facts do not necessarily betray a political motivation behind the Attorney General’s choice of Mr. Smith.

“I think [Garland] tried to find an unpolitical person, but it’s hard to find anyone in Washington who’s completely pure,” he said.

Since 2018, Mr. Smith has been working in the Hague as chief prosecutor in an investigation of war crimes committed during the Kosovo conflict in the late 1990s.

Before that, he garnered a reputation for prosecutions against high profile politicians including Democratic Senator John Edwards and Republican Virginia Governor Bob McDonnell. However, in neither case could his team make charges stick. Mr. McDonnell’s conviction for bribery was overturned by the Supreme Court, which said prosecutors’ interpretation of the statues exceeded the boundaries intended by the law.

Mr. Smith’s aggressive reputation was welcomed by many on the left, but Professor Tillman felt it made the DOJ’s decision suspect.

“[Smith] had a track-record of using an expansive definition of wrongdoing by public officials, that makes the Biden administration’s decision to pick him interesting,” he said. “Finding someone with a reputation for coming up with novel interpretations of the law makes it look like something akin to a diversion or trying to make a crime where none exists.”

In most prior instances of special counsel appointments, the office’s task was focused on investigation, interviewing witnesses, and searching for new evidence. However, the Congressional committee and ongoing trials relating to January 6 have already uncovered much material. The DOJ’s work on the Mar-a-Lago documents was diverted by a judge to a special master, but now an appeals court ruling has handed the matter back to the government. Even so, the DOJ seems to have deep knowledge of the case already. As such, Mr. Smith’s task likely will be more of an endgame.

“A fairly clear picture has emerged about what transpired on and in the days leading up to January 6 and we have a pretty clear picture about Mar-a-Lago too,” said Mr. Neily. “The question is not about trying to uncover remaining smoking guns. The question now is whether its sufficiently clear that President Trump committed prosecutable crimes and what are the prospects of conviction?”

Executive Privilege

As reports swirled that Mr. Trump failed to hand over many of his administration’s records to the National Archives, as required by law in most cases, this past summer, the FBI raided his Florida home and claims to have uncovered a large trove of classified files.

According to a recent report by the Washington Post, most of the items are related to Iran and China and DOJ officials “have come to believe former President Donald Trump’s motive for allegedly taking and keeping classified documents was largely his ego and a desire to hold onto the materials as trophies or mementos,” rather than for profit or espionage.

Mr. Trump said recently that he has dealt “openly and transparently” regarding his possession of the documents. His attorneys denied any wrongdoing, but also delayed returning them.

The DOJ’s investigation into the documents relates to three potential charges: mishandling classified materials, destroying government records, and obstruction of justice.

“Obstruction of justice is probably the easiest charge, and it’s probably fair; but we don’t know if it would be against Trump or his attorneys,” said Professor Blackman.

Those arguing for Mr. Trump to be charged pointed to many examples when present or former national security personnel were convicted for illegally possessing classified documents. A complicating wrinkle in the present case is that a president has broad powers to declassify records while in office, and the procedure of how to do so is not especially clear. That, and other privileges granted to executives, complicate the current case.

“There’s near-universal consensus that if this was about anybody besides a former President, that person would have been indicted and convicted. But, the question is whether it’s appropriate to pursue charges for this type of conduct,” said Mr. Neily. “Are we confident that no other President has done this? I wouldn’t be surprised if a few had.”

Question of Intent

The Congressional January 6 Committee has conducted over 1,000 interviews including many with those who were close to the former President between Election Day 2020 and January 6. Hundreds have been charged who allegedly committed crimes during the rioting, already resulting in several convictions.

While many Americans believe that Mr. Trump’s refusal to accept elections results and his “stop the steal” rally bear a level of responsibility for the violence that occurred, linking his actions to a criminal charge could be challenging.

During the Senate Impeachment trial, House Managers attempted to pin the former President with “incitement of insurrection,” but Congress was not tied to a statutory crime and the Senate, in a largely partisan vote, did not convict. Due to Constitutional protections for freedom of speech, American law has set a very high bar for what crosses the line of “incitement,” limiting it, in the words of a 1969 Supreme Court decision, to statements that are “directed to inciting or producing imminent lawless action,” and “likely to incite or produce such action.”

Mr. Trump’s call to “fight” in his speech at the Ellipse is unlikely to rise to that level, especially given his multiple references to peaceful protest.

A crime that has been rarely heard of since the Civil War, but which several leaders of the Oath Keepers and Proud Boys groups that participated in rioting have been charged with, is “seditious conspiracy,” which involves conspiring to undermine the government. Recently, Stewart Rhodes, the Oath Keepers leader, was convicted of the charge in a Washington court. Yet, as no connection has been established between Mr. Trump and any of the groups that planned violence on January 6, the charge could be difficult to apply to the former President.

Professor Tillman thought that relying exclusively on Mr. Trump’s speech at the Ellipse would make it difficult for prosecutors to prove such a charge.

“You would have to prove that he intended for the people who heard his speech to engage in violence on public property and to obstruct public officials from carrying out their duties,” he said. “There are statements in the speech which might imply that he didn’t care or had not considered whether his speech would lead to violence or not. That might be less than responsible, but it’s not insurrection. It is probably not even a crime.”

Beyond what occurred on January 6 itself, it is possible that the special counsel could focus on Mr. Trump’s phone call to Georgia’s secretary of state asking him “to find 11,780 votes,” which is already the subject of a state investigation. The call and possibly other actions connected to attempts to challenge election results could amount to a criminal charge of some broader form of conspiracy to undermine the peaceful transfer of power. That too, however, would have to fit into a statue such as sedition, attempting to defraud the U.S., or to obstruct a proceeding of Congress.

“The question becomes where is the line between expressing legitimate concern about an election versus conveying a message that the President wants you to find enough votes to put him over the top,” said Mr. Neily. “He made an effort to frustrate the legal process of confirming Biden’s election, but does that cross the line of trying to overthrow the government of the United States?”

As with his speech at the Ellipse, Mr. Trump’s mental state regarding the Georgia phone call could play a key role. Prosecutors might be challenged to prove that the former President did not truly believe that he won the 2020 election.

“If Trump were as insane as his opponents claim he is, maybe he really believed that he had won in Georgia,” said Professor Tillman. “They might have to prove that he was a cold, rational person who knew he lost and was encouraging the other party to act illegally.”

In his Georgia phone conversation, Mr. Trump concluded his controversial request by explaining, “Because we won the state.”

Mr. Neilly said that he would have a difficult time judging the validity of charges relating to the 2020 election without hearing more testimony from those around the former President during the times in question.

“I think what [Trump] did was corrupt and reprehensible; one of the worst actions by a United States President, but that’s not necessarily a crime,” he said. “A lot comes down to his mental state; what was he planning to do?”

Judgment Call

Even if the special counsel concludes that Mr. Trump could be prosecuted, that does not mean charges will or should be brought.

Given the explosive political factors around the investigations, Professor Blackman felt the current cases could be ripe to be left unprosecuted, unless something significantly more incriminating surfaces. 

“You will have half the country saying it’s a witch hunt, and another half that just wants blood and doesn’t really care about the law,” he said. “I understand that we can’t say a former President is above the law, but there is no way this will be looked at as fair prosecution.”

In general, prosecutors have very broad discretion in deciding what cases to pursue, and on far more mundane matters routinely decide not to file indictments for a long list of reasons ranging from limited resources to calculations like which types of crimes a given justice department chooses to focus on. Given the tremendous pressures from both sides of the political spectrum, whatever decision the special counsel and Attorney General make, it could be roundly criticized.

“It’s unfortunate that people on both sides want to simplify this issue,” said Mr. Neily. “We don’t want a country where you get a free pass because you’re a politically important person, but we also don’t want a country where it becomes routine for an incoming administration to go after the outgoing one for things that do not rise to the level of a major breach of public faith.”