If you have an abiding interest in American history, as I do, I suggest that you pay close attention to what is happening in Washington D.C. as we speak. What you’re witnessing is probably the last special counsel or special prosecutor that will ever be appointed to investigate a president or prosecute a former president. What began in 1973 with the appointment of former Solicitor General Archibald Cox as a special prosecutor to investigate the “Watergate affair,” as it was popularly known, came to a screeching halt Monday when special counsel Jack Smith filed a motion to drop all January 6 charges against Donald Trump. Hours later, Judge Tanya Chutkin granted Smith’s motion and dismissed the four felony counts against Trump.
Not one, but two federal grand juries had indicted Trump for violating federal laws by attempting to get the results of the 2020 election overturned. The second grand jury was empaneled after the Supreme Court last summer issued its infamous decision in Trump v. United States essentially giving him immunity from prosecution for anything he did while serving his first term in the White House. Oh, they dressed up the decision as best they could to make it seem like they hadn’t given Trump a get-out-of-jail-free card by creating two categories of presidential acts – official and unofficial – and saying the immunity applied absolutely to the first and presumptively to the last. But that was a joke all along, as Trump’s lawyers immediately filed for charges to be dropped against him, calling all of his actions as president official. With a Supreme Court containing six arch-conservative members, three of whom were appointed by Trump himself, there was little doubt which way the court would rule whenever Trump’s appeals reached them.
The whole idea of special counsels has occupied a gray area of the law and politics all along. Richard Nixon got rid of Archibald Cox as special prosecutor in the infamous “Saturday night massacre,” which also resulted in the resignation of Elliot Richardson, Nixon’s attorney general, as well as his deputy, William Ruckelshaus, after they refused to carry out Nixon’s order to fire Cox. Nixon had to appoint the odious Robert Bork, then solicitor general, to replace Cox as acting attorney general in order to get someone in office at the Department of Justice who was willing to carry out his order to fire Cox.
It is what happened in addition to the firings that night in October of 1973 that probably added to the motivation of special counsel Smith to drop the charges today. Immediately after Cox was fired and Richardson and Ruckelshaus had resigned, Nixon’s chief of staff, Alexander M. Haig, ordered the cordoning off of all three of their offices. The FBI moved in to seal the offices of the special prosecutor, the attorney general, and the deputy attorney general. All their papers and the so-called “work product” of Cox’s investigation of Watergate were seized, including materials that not yet been presented to a grand jury that was hearing evidence against Nixon. Evidence the grand jury had seen was also among the papers seized in the middle of the night. Grand jury testimony and evidence was secret and considered sacrosanct within the DOJ. Special prosecutor Cox issued a statement late that night after his firing and the seizure of all evidence from his office: “Whether we shall continue to be a Government of laws and not of men is now for Congress and ultimately the American people to decide.”
The outcry after the Saturday Night Massacre resulted less than two weeks later in Leon Jaworski's appointment to replace Cox. Jaworski would go on to sue Nixon over the White House tapes. The suit would land at the Supreme Court, which ruled that Jaworski had the right to sue Nixon and that Nixon had to hand over the tapes, not the summaries he had attempted to yield previously, to the special prosecutor. That decision came on July 24, 1974. On August 9, after the House judiciary committee voted on articles of impeachment, Nixon resigned the presidency.
Well, the long and the short of it is that we’re in a different age, with a different Supreme Court, and certainly a different former president who was being investigated by Smith, and who will return to office on January 20 of next year, having won the 2024 election earlier this month. During the campaign, Donald Trump repeatedly said he would fire special prosecutor Smith on “day one,” and his surrogates have been all over television since the election claiming that not only will anyone in the Department of Justice associated with the prosecution of Trump be fired, but that charges would be brought against Jack Smith and all the prosecutors in his office.
It's obvious that Smith is trying to get ahead of Trump firing him and his assistant prosecutors. The Florida charges against Trump for theft and mishandling of government secrets were already dismissed by Judge Aileen Cannon. Smith had filed a motion with the 11th Circuit Court of Appeals to reinstate the charges. He will doubtlessly drop that motion, and the Florida charges against Trump will disappear in the same way the Washington charges have.
Smith’s motion to drop the January 6 charges against Trump was filed “without prejudice,” which means that the charges can be refiled at some point in the future. Because Trump has not yet taken office, the Department of Justice and the office of the special counsel are still under the control of Merrick Garland, who appointed Smith, and President Joe Biden, who appointed Garland.
Smith and his assistant prosecutors will probably now resign their commissions as special counsels, and the office will be closed. The work product of both investigations, into Trump’s actions surrounding January 6 and his theft and mishandling of secret documents, belongs to the United States government. I don’t know what will become of all that evidence. I do know that there are copying machines throughout the Department of Justice. I know that flash drives are available cheap on Amazon and from places like Best Buy, so I would expect that the evidence will be preserved in some manner by what we might call parties interested in the preservation of democracy. Perhaps Smith could prevail upon Judge Chutkan to issue some sort of court order for the preservation of evidence. It is beyond unlikely that Judge Cannon would issue such an order, so that’s not going to happen in the classified documents case.
I can’t predict the future, but from what I know about the Department of Justice, I think Trump would find it difficult to get Jack Smith and any of his assistant prosecutors indicted for doing jobs they had been assigned to as employees of the Department of Justice. For an example of what happened the last time Trump sought punitive investigations of prosecutors, we need look no further than Attorney General William Barr’s appointment of John Durham to investigate the investigators associated with the Mueller investigation of the Trump campaign’s Russia associations.
Durham spent three years trying to get something on the Mueller investigators. He managed to convict one FBI officer of altering an email associated with renewing a FISA wiretap of former Trump campaign official Carter Page. The FBI official, Kevin Clinesmith, pleaded guilty to a single charge of adding the phrase, “and not a source” to a CIA statement about the agency’s prior association with Page. Clinesmith got 12 months probation and 400 hours of community service. Durham’s other big prosecution was of Michael Sussmann for lying to the FBI about who he was representing concerning an investigation of a bank allegedly associated with the Trump campaign. Sussmann was acquitted by a jury after only six hours of deliberation. Two prosecutors resigned from Durham’s team in protest of the prosecution.
Special counsel Jack Smith and his team of prosecutors are getting out while the getting is good, as the saying goes. Trump failed with the appointment of his chief lackey, Matt Gaetz, to be attorney general. So he appointed former Florida attorney general Pam Bondi instead.
The next four years will tell us how successful Donald Trump will be in politicizing the United States system of justice from top to bottom. He’s already got the Supreme Court on his team. Will Pam Bondi be able to bring the DOJ along with her? Stay tuned.
