Mr. Smith Goes to Washington

In the 1939 movie, Mr. Smith Goes to Washington, Mr. Smith, played by Jimmy Stewart, is a fearless and determined Senator who fights, and ultimately prevails, over corruption in his home state and in Washington. The Mr. Smith of 2022 is Jack Smith who has been appointed Special Counsel to investigate and as appropriate, prosecute the apparent crimes of Donald Trump involving both the misappropriation of highly classified documents and his attempted coup in 2021.

The odds may not appear to be stacked against Jack Smith quite as steeply as they were in the case of his 1939 namesake, but he will probably need just as much determination. Despite Donald Trump’s manifest deficiencies, there can be no question that he is a wily and resilient defendant. Early on, he inherited the nickname, “Teflon Don,” which had initially been applied to Mafia boss, John Gotti. In the end, Gotti’s Teflon veneer was pierced, and so may Trump’s be, but it won’t be easy.

The appointment of a Special Counsel was long overdue. It was suggested in this space nearly a year ago. The action-forcing event now was apparently Trump’s announcement of his candidacy for 2024; but before that, a conflict could easily have been discerned from Trump’s dominant position in the Republican Party and the strong likelihood that he would run in 2024. Once the appointment was made, Trump reacted predictably like a scalded cat, and the Wall Street Journal proffered flimsy arguments as to why the appointment was a mistake.

The Journal argued that “[n]o one in the Trump universe is going to believe that any decision to prosecute Mr. Trump would be truly independent of the Attorney General who works for President Biden. That’s plain reality.” Well, true enough, but so what? No decision to prosecute by anyone would be persuasive to the benighted denizens of the Trump Universe. On the other hand, a prosecution by Jack Smith is likely to be accepted as fair-minded by more objective citizens. It is, in any event, as much as could have been done as a practical matter to insulate a prosecution from politics. To deny that would be to argue that, during the Biden administration, no federal prosecution of Trump could be initiated under any circumstances because the action would inevitably have political implications. Accepting that argument would satisfy Trump’s quest for a “Get Out of Jail Free” card, but would debase the rule of law beyond recognition.

The appointment of a Special Counsel is welcome not because it “solves” the conflict problem, but because it shows, at long last, some seriousness of purpose on the part of the Garland Justice Department to hold Trump and his senior minions accountable for their criminal activities. It is not, however, an event that should cause any giddiness among those of us who would like nothing better than seeing Trump fitted for an orange jump suit.

Along the way, there will be many obstacles to a successful prosecution. For example, Trump’s counsel will search exhaustively for legal issues that might be elevated into the hands of Justices Clarence Thomas and Samuel Alito and their Trump-friendly colleagues on the Supreme Court. And if the case against Trump ever makes its way to trial, it would take only one Trump supporter on a jury to prevent a guilty verdict. Nevertheless, there is reason to hope that, in the end, justice will prevail.