Is this the end of special counsels forever? Jack Smith is in survival mode

Donald Trump, meanwhile, is dancing a jig on the grave of the rule of law

Photo illustration: Salon/Getty Images

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.”

This is an excerpt from my weekly Salon column. To read the rest of the column, go here:

Trump buries the rule of law