The education of a special counsel

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Jack Smith, the special counsel appointed by Attorney General Merrick Garland to take over the investigations of Donald Trump, has joined a select club: He is one of a small number of special prosecutors in modern history to investigate a sitting or former U.S. president. Now is a good time to look back to these examples and take stock of what we can learn from them.

The challenges for Smith will be shaped by the context in which he operates within the executive branch and the nature of his factual investigation. It is useful to take note of how this differs from the special counsel investigation of a president that immediately preceded him led by Robert Mueller. I was a senior member of that team.

Smith is stepping into a political context very different from the one that confronted Mueller. Most notably, because of Justice Department policy, Mueller was forbidden to charge a sitting president. Now that Trump is a former president, Smith is not subject to that limitation. (That policy does not apply to presidential candidates like Trump.)

Trump also no longer has key weapons he wielded to frustrate the Mueller investigation: the destabilizing threat of firing the special counsel and Justice Department leadership to curtail the scope of the investigation and the ability to dangle and bestow presidential pardons to discourage witnesses from cooperating.

The Mueller team's adversarial relationship with the White House at times also extended to the Justice Department, which sought to manage and scrutinize the investigation and narrow its scope in detrimental ways. Indeed, I experienced more senior Justice Department oversight, not less, when working on the special counsel investigation than I had for a standard Justice Department case.

The factual nature of the investigations are also an advantage: Although the Jan. 6 investigation is hydra-headed, it is far less complex than investigating political interference by a foreign country in a presidential election.

The Mar-a-Lago documents case is straightforward for experienced prosecutors and agents. In that regard, it is like the investigation of Paul Manafort, the former Trump campaign chairman. That investigation, which I led, involved for the most part simple economic crimes that the department prosecutes routinely.

Smith will still face the challenges of Trump's post-presidential bully pulpit and name-calling from his allies in Washington. And investigating and prosecuting matters in the blinding glare of the media poses numerous challenges. For one, as I learned from the Mueller investigation and the Enron Task Force, it is far harder to persuade a witness to admit to wrongdoing when that admission will be splattered across outlets nationwide.

This intense public interest suggests the importance of undervalued dimensions of the special counsel role: communication and education. Special counsels operate under specific Justice Department regulations. The regulations that will govern Smith's team provide that at the conclusion of his work, a confidential report will be given to the attorney general. (At the attorney general's discretion, the report may be released publicly. That is what happened with the Mueller report.)

The regulations do not require regular public testimony or progress reports. Americans heard a lot about Mueller, but during the investigation they never heard directly from the media-shy man himself, who was known to intone "you live by the press, you die by the press." By contrast, the previous special counsel to investigate a president, Kenneth Starr, was criticized for oversharing during his sprawling, yearslong investigation during the Bill Clinton presidency.

One lesson from the Mueller investigation is that the traditional Justice Department mantra — "We try our cases in court" — can be taken too literally, with devastating consequences. That rule in and of itself is incontrovertible and a bedrock of our system: Those who are under investigation, but not charged, have a right not to be publicly denigrated by department prosecutors and agents. The former FBI director James Comey's July 2016 news conference about Hillary Clinton's emails is a stinging example of misunderstanding the department's role in our justice system.

But the mantra does not mean letting only one side shape a narrative and leaving the public with an abundance of unanswered questions. For instance, a common misconception during Mueller's investigation — one that persists — is that we might have been able to charge the sitting president. A news conference by Justice Department leadership or the special counsel could have educated the public about the Justice Department rule prohibiting that outcome and the rationale for that rule. Similarly, few understood that special counsels are a part of the Justice Department, that the attorney general could reject any indictments and that special counsels have to follow all internal department rules.

It is worth noting that the Justice Department rules would not prohibit Smith's discussing procedural issues and, as the investigations come to fruition, explaining why any potential charges are consistent with past cases. In other words, if there is an indictment, he could explain why Trump would be treated no better or worse than individuals who have been charged with similar crimes.

There is precedent among special counsels for this sensible approach to communicating where needed with the American public. In October 1973, Archibald Cox was the special prosecutor assigned to the Watergate investigation. He held a widely heralded news conference explaining why he took certain actions related to obtaining the Nixon White House tapes, for which President Nixon and his allies were pillorying him. He did so without ever crossing the line into directly alleging criminal misconduct by the president. Cox explicitly acknowledged and adhered to the limits of what he could say publicly, and he was still able to articulate fully for the public what he was doing and why. Equally important, he did not allow President Richard Nixon and his cronies to monopolize the airwaves. Further, by doing so not in a written legal brief, he allowed people to absorb the information in a more user-friendly medium and to take a measure of the man making those decisions. The Jan. 6 House committee clearly learned that lesson well in its media-savvy hearings.

There have been signs that Garland understands the need for this type of communication. His news conference about the Mar-a-Lago search suggested why a search was necessary because other means had been tried and failed, dispelled claims that FBI agents planted evidence and made clear that the attorney general himself made the decision to seek the Mar-a-Lago search warrant. That information had not been public and his communicating it benefited the public, without crossing the line into stating personal views about the guilt of any uncharged individual. Perhaps most important, it allowed the public to have a better sense of who was at the helm and to take stock of Garland's bona fides.

It is thus well worth recalling the precedent of Cox: A prosecutor need not and should not stay entirely mute and can simultaneously fulfill his obligations to the department's rules and the need for public enlightenment.