Are Special Counsels good or bad? Or rather, is the process of the independent Special Counsel — appointed by the Department of Justice — to be respected, or not?
That has become a thorny problem today for Republicans rushing to the defense of former President Donald Trump after his indictment on federal charges by a grand jury in a case headed by Special Counsel Jack Smith.
Republicans like House Speaker Kevin McCarthy have rushed to disembowel Special Counsel Smith’s investigation and the resulting charges as being politically motivated — very nearly repeating the words of the accused, Donald Trump, who characterizes all cases against him as “witch hunts.” See McCarthy statement below.
(Note: Almost alone among Republicans, GOP presidential contender and lawyer Chris Christie is taking a different approach, saying to wait for the facts rather than excoriating the Special Counsel.)
Below is McCarthy, even before details of the indictment were released, impugning the integrity of Smith and the DOJ — and the very idea that a Special Counsel acts independently and free of political considerations.
Today is indeed a dark day for the United States of America.
— Kevin McCarthy (@SpeakerMcCarthy) June 9, 2023
It is unconscionable for a President to indict the leading candidate opposing him. Joe Biden kept classified documents for decades.
I, and every American who believes in the rule of law, stand with President Trump…
Yet for weeks the communications of high-ranking Trump defenders like McCarthy, Marjorie Taylor Greene and James Comer have been filled with quotes and information produced by a Special Counsel.
That Special Counsel is John Durham. Special Counsel Durham’s report’s conclusion that there was basis for a preliminary investigation into the 2016 Trump campaign’s alleged collusion with Russia, but not for a full investigation into the matter, was shared broadly on TV and social media by Republicans, who called it a victory.
Many, of course, called it more than that — saying the Special Counsel’s report proved the FBI investigation (Crossfire Hurricane) was a “hoax.”
Durham’s report didn’t say that, but MAGA politicians interpreted it that way and claimed vindication for Trump, trumpeting Durham’s findings across multiple media outlets. The Special Counsel in Durham’s case was granted respect for his autonomy and non-political motivations, characteristics inherent in the Special Counsel program.
McCarthy’s swift dismissal of Special Counsel Smith’s conclusions — exactly the opposite of his treatment of Durham’s conclusions — reveals a larger picture in which a confirmation bias is operating on the side of Trump’s defenders. They respect the Special Counsels whose conclusions they like, and disrespect the Special Counsels whose conclusions they don’t.
Here’s McCarthy praising Durham’s report — that is, praising a Special Counsel’s conclusion that is politically amenable to him. Special Counsel Durham’s report represents, for McCarthy, the truth, whereas Special Counsel Smith’s results represent, for McCarthy, something “unconscionable.”
The position of special counsel has its origins in post-Watergate America, when it was feared that political maneuvering might overpower justice. One result was the eventual creation of independent Special Counsel.
As PBS succinctly puts it, a special counsel is an “attorney appointed to investigate, and possibly prosecute, a case in which the Justice Department perceives itself as having a conflict or where it’s deemed to be in the public interest to have someone outside the government come in and take responsibility for a matter.”
The Code of Federal Regulations requires that “a special counsel must have ‘a reputation for integrity and impartial decision making” and “an informed understanding of the criminal law and Department of Justice policies.”
