Jack Smith’s Ambition

For those of a certain age it’s shocking to read of the scale of surveillance that Special Counsel Jack Smith launched against members of the Congress. The latest disclosures illuminate one of the things that make special and independent counsels so dangerous. The powers and independence with which they’re vested are such that it’s hard to avoid the temptation to use them. The Congress is right as rain to be furious.Documents just made public by the House Judiciary Committee as well Senator Charles Grassley, our A.R. Hoffman reports, provide the fullest glimpse yet of both of the special counsel’s two cases against Mr. Trump. One involved the J6 riot and the other the documents at Mar-a-Lago. Glimpsed are a secret memorandum prepared by Mr. Smith’s office and appended emails. Mr. Grassley alleges that Mr. Smith “misled Congress and the public, if not outright lied.”Mr. Smith’s sought to convict Mr. Trump for what the prosecutor called a “criminal scheme” to reverse the results of the 2020 presidential election. His indictment argued that there would have been no riot at the Capital on January 6 without Mr. Trump’s complicity and direction. Mr. Smith also concluded that Mr. Trump’s retention of classified documents at Mar-a-Lago violated the Espionage Act and other crimes of obstruction. The memo provides the definitive list of the 14 solons who were surveilled by Mr. Smith, among them Senators Ted Cruz, Lindsey Graham, Marsha Blackburn, Bill Hagerty, and Dan Sullivan. Among the action items listed on the documents is to carve out time to nail down “the important precedent-setting issues we face in areas of executive privilege, Speech or Debate, and the scope and application of the relevant statutes we are considering charging.”“Precedent-setting” is one way of putting it. “Possibly unconstitutional is another.” The parchment ordains that lawmakers “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”Courts have taken that to mean that lawmakers enjoy absolute immunity for any actions connected, even thinly, to their legislative work. No doubt each target of Mr. Smith’s probe would argue that reflecting on the election was squarely within their legislative remit. Then there is presidential immunity, which the Supreme Court decided in Trump v. United States presumptively extended to official presidential actions, but not to unofficial ones. The launching, by a special counsel appointed by the Biden Administration, of such a sprawling criminal investigation into so many office holders of the opposing political party is a cause for constitutional concern. It holds the potential for precisely the kind of abuse that Justice Antonin Scalia worried over in his dissent in Morrison v. Olson, where he saw the remit of the independent counsel as a threat to separated powers.The Great Scalia, writing about independent prosecutors, warned that “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing. But this wolf comes as a wolf.” We imagine that Scalia would apply the same lupine logic to “Operation Arctic Frost.” Mr. Smith only charged Mr. Trump but that could have infringed on the rights of many more. Another good reason to bid adieu to special prosecutors of all stripes.

Jack Smith’s Ambition

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