The Special Prosecutors’ Poisoned Chalice

Readers of these columns comprehend that we have no love lost for the prosecutions of President Trump undertaken by Special Counsel Jack Smith. We think it would be a mistake, though, for Republicans to launch against Mr. Smith, as Republicans are threatening, their own brand of lawfare. That would just compound the morass of investigations — poisoned chalices all — that have come to define the tenure of presidents and their post-presidencies. Triumphant Republicans would like to see the prosecutor prosecuted. Speaker Johnson on Tuesday declared that “there were a lot of figures related to the Justice Department and on the outside of the Justice Department that used lawfare against President Trump. There needs to be very serious accountability for that.” Congressmen Barry Loudermilk and Jim Jordan want Mr. Smith to retain documents from his cases. Subpoenas could ensue. Rhetoric against Mr. Smith has darkened. The billionaire Elon Musk booms on X that “Jack Smith’s abuse of the justice system cannot go unpunished.” One adviser to Trump, Mike Davis, declares that Mr. Smith “should go to prison for engaging in a criminal conspiracy against President Trump.” Trump vowed that, if elected, he would fire Mr. Smith “within two seconds” and that his legal foe “should be thrown out of the country.”Trump’s nominee for attorney general, Congressman Matt Gaetz, has disclosed himself as hostile to Mr. Smith. In March, he declared that “The witch hunt against President Trump by Attorney General Garland and Special Counsel Smith is a partisan exercise.” We don’t disagree. Trump’s electoral triumph showed that millions of Americans agreed with that verdict. We see the election as an acquittal and would stop there. There once was a time when both parties agreed to allow the predecessor to the special counsel — called the independent counsel — to lapse into desuetude. That was 1999, when the Independent Counsel Act expired, unmourned by either party. The investigations of Iran-Contra and President Clinton had left little appetite for the kind of roving prosecutors that Justice Antonin Scalia described as a “wolf” that “comes as a wolf.”Today’s special counsels are not quite as autonomous in respect of presidential power as their predecessors, but they are still suspect given that the parchment vests all of the executive power — 100 percent of it — in the president alone. Judge Aileen Cannon found that Attorney General Garland’s appointment of Mr. Smith without Senate confirmation was unlawful and “threatened the structural liberty inherent in the separation of powers.”Higher jurists could agree. Justice Clarence Thomas, in oral arguments last term, anticipated Judge Cannon’s doubts as to the lawfulness of Mr. Smith’s appointment. Justice Brett Kavanaugh called the case that greenlit independent counsels, Morrison v. Olson, a “terrible decision” and one of the court’s “biggest mistakes.” Outrage over Mr. Smith is best directed not at the now soon to be gone special counsel, but at the constitutional violations.There is now a pattern of special counsels striding forth as white knights and returning bedraggled and with broken spears. Their recent roster — Archibald Cox, Lawrence Walsh, Kenneth Starr, Robert Mueller, John Durham, Robert Hur, and now Mr. Smith — is a record of disappointment to those who hoped they would bring down this or that president. It turns out that Americans are smart enough to sort out all that by themselves.

The Special Prosecutors’ Poisoned Chalice

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