A new Trump special counsel has the chance to correct Mueller’s mistakes

Jack Smith is no Robert Mueller.

And I mean that as a compliment — to Smith. Smith is the Justice Department’s new special counsel, appointed Friday to oversee two matters possibly implicating former President Donald Trump. The first is the investigation into interference with the lawful transition of presidential power leading up to the Jan. 6 insurrection. The second is the probe of sensitive government documents found at Trump’s Mar-a-Lago home and any related obstruction of justice.

Attorney General Merrick Garland made the announcement following Trump’s own announcement Tuesday that he would be running for president in 2024. This combination of facts presented “extraordinary circumstances” that demanded the appointment of a prosecutor working independently from Garland’s day-to-day supervision.

Don’t get me wrong; I have great admiration for Mueller. He was a decorated Marine, a capable prosecutor, a revered FBI director and an honorable special counsel who led the investigation into links between Russia and Donald Trump’s 2016 campaign for president.

But in that last role — special counsel — Mueller was, in my view, ultimately ineffective. Not because he found that there was insufficient evidence of a conspiracy between Russia and the Trump campaign, but because of his utter failure to communicate to the American people what he actually did find.

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Mueller insider says special counsel’s investigation fell short September 21, 2020 / 05:22

According to Mueller’s report, Trump campaign members and allies met with Russians for the purpose of obtaining dirt about his opponent, Hillary Clinton, shared polling data with a Russian intelligence officer and coordinated messaging with Wikileaks when it published disparaging email messages that Russia had stolen from the Democratic National Committee.

Any one of those revelations should have been jaw-dropping. Instead, they were buried in 400 pages of dry and repetitive legalese.

What’s more, Mueller apparently found that Trump had obstructed justice. Or did he? In his report, Mueller and his team wrote, “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Huh? Does that mean Trump obstructed justice or not? It’s like the old Key and Peele comedy sketch, “Gideon’s Kitchen,” in which a head chef gives escalating levels of conflicting feedback that leaves his student baffled: “You should be working at the finest restaurant in the world,” he tells the student, whose face lights up. “Just not any world that I live in.” The student’s face falls. The pattern goes on and on. Mueller’s report left me with the same sense of bewilderment.

What’s more, Mueller’s failure to make a prosecutorial decision opened the door for Attorney General William Barr, who had no qualms about barreling through it. Barr publicly claimed, of course, that Trump had not obstructed justice, allowing Trump to declare and his followers to believe that he had been exonerated. A federal judge called Barr’s characterization of Mueller’s findings “distorted” and “misleading.”

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Mueller responded to Barr’s deceptive spin with a letter. If there is such a thing as being too honorable, Mueller is it.

With Smith, DOJ has a chance for a do-over. By all accounts, Smith is a hard-working, apolitical prosecutor, who once led the Justice Department’s Public Integrity Section, which prosecutes corruption public officials. Most recently, he has been working as a war crimes prosecutor in the Hague. Dwight Holton, a former colleague at the U.S. Attorney’s Office in Brooklyn, called Smith “a scrappy, no nonsense prosecutor who cuts through bullshit like a knife through hot butter.” All sounds like good preparation to investigate the former president. 

Of course, the situation Smith faces is far different from the one Mueller navigated. Barr expressed hostility to the Mueller investigation even before taking over as attorney general in 2019. Garland, on the other hand, was already overseeing the investigations into Jan. 6 and Mar-a-Lago. He’s handing it off to a special counsel only because of the apparent conflict arising from Trump’s campaign announcement.

Smith should thus receive less resistance to his work at DOJ than Mueller did. Mueller, the boy scout who works earnestly to do everything right, was no match for the tactics of Barr, the neighborhood bully.

Let’s hope the scrappy Smith is better prepared for a street fight.