Special Counsel Jack Smith, who prosecuted Donald Trump for mishandling classified documents and other alleged crimes, resigned from the Department of Justice, according to court filings on Friday.
Smith may very well be the last "special counsel" or "special prosecutor" in history. Going back to Special Prosecutor Leon Jaworski, who investigated the Nixon administration, the appointment of these powerful, unaccountable prosecutors has been challenged by presidents.
A Trump-appointed judge, Aileen Cannon, finally ruled that the office was unconstitutional. Cannon said that appointing Smith was unconstitutional under the appointments clause for the Attorney General to appoint an outside special counsel without the consent of the Senate.
It's a messy legal argument that other judges and Supreme Courts have ignored. Attorney General Merrick Garland is appealing Cannon's ruling, and whether or not the current Supreme Court accepts Cannon's rationale is problematic. If it does, the left will declare the U.S. over and done with and irretrievably lost.
Smith's resignation was expected, but not at this point. It was believed he might stay on long enough to see the special counsel appointment upheld or denied since several of his attorneys were working on that case.
The issue now is whether Smith's report on the classified documents and the "election subversion" cases will be released to the public and when. Smith has already promised members of Congress that they will be able to read the brief on classified documents this weekend. Judge Cannon wants to read the other report before deciding whether it can be released to see if there is any overlap with the classified documents case.
Smith was appointed by Garland to take over the documents and election subversion investigations in November 2022, after Trump announced his campaign for reelection. A former federal prosecutor, Smith had more recently served as a war crimes prosecutor at the Hague.
He brought charges against Trump in both investigations in 2023, but both prosecutions ran into legal setbacks, and with voters’ decision to return Trump to the White House, the president-elect was dismissed from the cases.
One legacy from Smith’s investigations is the sweeping presidential immunity ruling handed down by the Supreme Court in the election subversion case, which set a very high bar for prosecuting a former president for his official acts in office.
Trump and his political allies in Congress have already vowed to investigate the special counsel probes and related matters, such as the totally unnecessary search of Trump's Mar-a-Largo estate using massive numbers of FBI agents who were visibly armed.
The special counsel statute gave Smith extraordinary powers to investigate far afield from whatever criminal act he suspected was committed by Trump.
The report potentially acts as Smith’s final word on what his investigations found, and their legal reasoning. The current court fight aside, there are other avenues by which the report might become public. Congress could take steps to obtain the report or information from it. There is also the possibility of Freedom of Information Acts requests, and litigation stemming from those requests, forcing the disclosure of details from the report.
Trump’s former co-defendants, Walt Nauta and Carlos DeOliveira, are arguing that the report should not be shared with Congress or the public because it would be prejudicial in the event that the prosecution against them — dismissed by Judge Cannon on the grounds that Smith was unconstitutionally appointed — was revived by an appeals court.
Special counsels have all exceeded their mandates and gone rogue in one way or another. It's time for Congress to either make any prosecutor appointed to investigate a current or former president subject to the appointments clause of the Constitution or definitively make any such appointment illegal.
Join the conversation as a VIP Member