Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File); Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York. (AP Photo/Julia Nikhinson, Pool)
If Donald Trump wins the presidency and the Republicans win the Senate, special prosecutor Jack Smith may be the first man fired after the inauguration on Jan. 20, 2025.
Smith has spent the past two years investigating Trump, indicting the former president in connection with classified documents found at Mar-a-Lago and for the alleged election interference conspiracy that resulted in a mob assault of the U.S. Capitol on Jan. 6, 2021. While each case has been a roller coaster of legal motions and hearings, neither has come close to a trial. The U.S. Supreme Court has thwarted Smith’s efforts regarding the election interference case by granting Trump broad presidential immunity, and U.S. District Judge Aileen Cannon, the federal judge in Florida overseeing the classified documents case, has held that Smith does not have the legal authority to prosecute as special counsel.
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While Smith may not yet have Trump verbally spitting at him from the witness box in a courtroom, he has clearly provoked Trump’s ire. Trump has regularly complained that the Department of Justice has been “weaponized” against him for political reasons and that Jack Smith is “deranged.” It would appear that Trump is only one election win away from an “off with his head” command as relates to Jack Smith.
Under federal regulations, a special counsel can be “removed from office only by the personal action of the Attorney General.” In light of Cannon’s decision, which undercuts the authority of an acting attorney general, a newly-elected Trump could insist that his attorney general — and not an acting attorney general — remove Jack Smith. If I was advising an applicant to the attorney general job in the Trump administration, I would tell them to outline the plan to put Smith on the curb on the first day of the job in their cover letter. To speed this along, though, they will need a Republican Senate that wastes no time in confirming Trump’s attorney general nominee.
Under the special counsel regulations, the attorney general can remove Smith for misconduct, dereliction of duty, or other good cause, including violation of DOJ policies. That provides an ample playing field for Trump’s nominee to conclude Smith’s prosecutions of Trump were politically motivated and therefore a clear violation of DOJ policies, justifying his removal.
In most civil or criminal investigations, the investigator does not have immediate access to the communications and files of the target. However, Trump’s attorney general would have immediate access to every email, document, and text message that Smith created or received, since his appointment as special counsel on Nov. 18, 2022, as relates to his pursuit of Trump. I can see it in my mind, this newly minted attorney general sitting at his desk and reviewing every legal memorandum that discussed the pros and cons of every legal move that Smith and his team considered or executed.
I can also see such an attorney general ordering a deep dive into the expenditures made by Smith and others in their pursuit of Trump. All of this information would be shared with Trump within a matter of weeks of Smith’s dismissal, and rest assured, if Trump could make political hay of it, he would not hesitate to share it with Congress and the American public as well.
I am certain Smith would have an idea of what may be coming, but certainly every rock would be uncovered in this investigation.
If the Republicans claim both the House and the Senate, expect the legislative body to open an investigation into Smith’s actions. I could foresee Smith, under penalty of perjury, being subpoenaed to testify before Congress numerous times. He would be asked repeatedly about his personal political motivations and his personal contacts within the administration of President Joe Biden. Indeed, if the recent Trump prosecution in New York is any indication, Congress would suss out any connection between Smith and the Democratic Party, however slight. The Republicans in Congress would have the power to look for any opportunity to turn their probing into a criminal referral to the Department of Justice, and would be likely to do so. If necessary, I expect Smith would aggressively assert he is immune from any criminal prosecution.
This new Trump attorney general could also go after Smith through a referral to the Office of Professional Responsibility (OPR). OPR disciplines DOJ attorneys who violate the rules of ethics governing them. And then there are the “unwritten” rules that DOJ attorneys are also expected to follow. For example, there is an “unwritten” rule that DOJ attorneys are to avoid significant legal actions within 60 days of an election. This would likely be a focus for Trump’s attorney general, since it can be said that Jack Smith “blew through” this soft deadline by making court filings in September in the election interference case. OPR has broad discretion regarding the extent and scope of its investigations, which also extends into its findings and punishment.
Right now, Smith is the most well-known prosecutor in the country, and he may go down in history as the only prosecutor to bring criminal charges against a former president. Should Trump win the election, however, I expect he would have an attorney general who would aggressively go after Smith. Then, Smith will go from the hunter to the hunted. The investigation of Smith would move with alacrity, exposing Smith to harm at every turn.
But in Smith’s defense, I don’t see him going down without a fight.
John P. Fishwick, Jr. is the founder and owner of Fishwick & Associates PLC, a trial law firm in Roanoke, Virginia. John previously served as the United States Attorney for the Western District of Virginia.
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