Let’s look at the pros and cons of having a special prosecutor for Trump

Attorney General Merrick Garland has appointed Jack Smith as a special counsel to investigate Donald Trump. The decision was made after Trump announced his candidacy for the presidency. The purpose of a special prosecutor is to avoid both the reality and the perception of political bias inherent in an attorney general investigating his boss’s potential political opponent.

The positive side of a special prosecutor is that he is independent of, and can be fired or promoted by, the Attorney General and other senior Justice Department officials appointed by the incumbent President. This is not to say that any of these individuals are overtly influenced by political considerations rather than the rule of law. Such a bias is of course possible, either on a conscious or subconscious level, but even if it did not in fact exist, the widespread perception would be that it did. Justice must not only be practiced, but also made visible. This is particularly important in our current age of highly divisive party politics.

In any case, Jack Smith meets the requirements of independence and professionalism. He has a long career as a prosecutor, federal prosecutor and international prosecutor. His experience makes it very likely that he will conduct an objective investigation. But whatever the outcome, Smith will be attacked: partisan Republicans will criticize him if he votes against Trump, while partisan Democrats will object if he votes in his favour. It’s a no-win situation for anyone interested in popularity or a political future. Former special prosecutors, like the late Ken Starr, understood this when they took the job, but they prioritized patriotism over careerism.

The role of a special prosecutor differs from that of an attorney general because special prosecutors have a specific objective. Prosecutor’s discretion is a central, perhaps even the central, aspect of the work of ordinary prosecutors. They not only decide whether there has been a technical violation of criminal law. They also consider each case in the context of similar cases that have either been prosecuted or not. This is particularly important in a high-profile and divisive case like Donald Trump’s.

For example, suppose an investigation concludes that he was technically guilty of violating laws regarding misuse of classified or classified documents. But also assume that the investigation concludes that his misconduct was not significantly worse than that of Hillary Clinton, who was also a presidential candidate. An ordinary prosecutor can do a comparative analysis like that done by the prosecution and the FBI in the Hillary Clinton case. They concluded that no one had previously been prosecuted for comparable conduct. A special prosecutor is less likely to make a comparative judgment, although his mandate would not preclude it.

The job of an ordinary prosecutor is to investigate crimes in general and prioritize those that should be prosecuted. They don’t usually focus on the person first and then try to determine if they have committed any crimes. But that’s exactly what special prosecutors do. As the old expression goes, “To a hammer, everything is a nail.” For a special prosecutor, his target may well be considered guilty rather than innocent. This is not inevitable, but more likely with a special prosecutor than with an ordinary prosecutor.

No one should jump to judgment on Garland’s decision to appoint a special prosecutor. Garland is a decent man, a highly respected former judge, and someone who hasn’t delved into party politics. His choice of special prosecutor also seems appropriate for the job. But it remains to be seen whether Smith and his associates will be able to withstand the intense partisan pressure being placed on them.

So far, the investigations of Trump and his allies have not passed the test of whether justice is being done or perceived as such. An aura of partisanship has permeated most investigations, particularly those conducted by the House of Representatives’ January 6th Committee and New York Attorney General Letitia James, who fought on promises to “snare Trump.” The arrest and handcuffing of several Trump associates has lent credence to allegations of partisanship, as has the use of a full warrant rather than a narrower subpoena in the Mar-a-Lago search.

Accordingly, a special counsel must be “Caesar’s wife” when it comes to investigating a Republican presidential candidate. Anything less than total objectivity and compliance with the rule of law will only exacerbate the partisan divisions currently plaguing our country.

Keep following Alan Dershowitz
Twitter: @Alandersh
Facebook: @AlanMDershowitz
New podcast: The Dershow, on Spotify, YouTube and iTunes
Dersh.substack.com

The views expressed in this article are the author’s own.