As former President Trump faces his second special counsel investigation in six years, some legal experts are encouraging the Justice Department to be more vocal in addressing the inevitable attacks and misinformation about the high stakes probe.
The appointment of Jack Smith to oversee dual Justice Department investigations into the mishandling of records at Mar-a-Lago and efforts to block the 2020 transition of power comes as the public holds fresh memories of the attacks on special counsel Robert Mueller as he investigated Trump’s ties to Russia.
Special counsels are thrust into the public spotlight, but most work within the confines of an agency that largely restricts its employees to speaking through court filings.
It’s a dynamic that worries some, who see the days of reverence for special counsels with even the most venerable reputations as long gone.
“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,” Andrew Weissmann, one of the prosecutors on the Mueller team, wrote in an op-ed in The New York Times.
“But the mantra does not mean letting only one side shape a narrative and leaving the public with an abundance of unanswered questions,” he added.
Not all special counsels have been so mum, with Kenneth Starr facing blowback for offering many an update over his years-long investigations into President Clinton.
“There is surely a middle ground,” Weissmann urged.
Trump frequently railed against the Mueller investigation, which was launched after Trump fired then-FBI Director James Comey, who had been overseeing an investigation into Russia’s involvement in the 2016 presidential election.
On Twitter, Trump repeatedly complained about “the Russia hoax,” and “disgraced and discredited Bob Mueller.” He would go on to call Mueller “highly conflicted,” while the probe, like other inquiries, was often cast as a witch hunt.
“Robert Mueller had such a sterling reputation in the legal community. And yet that wasn't enough to prevent people from making all kinds of wild allegations about his movies,” Barbara McQuade, a former U.S. attorney, told The Hill.
But adhering to Justice Department tradition and largely staying quiet about the case “allowed [then Attorney General] William Barr and Donald Trump to distort the findings of Robert Muller,” she said.
“Because Robert Mueller was so wedded to the rules and didn't speak out loud, I think it was in effective disservice to the American people. I think his intentions were good. But I think that he came up during a time when people in public life acted in good faith. And now we find ourselves in a time when people are willing to twist the facts to suit their purposes. And so the way to combat that tendency is with facts and education,” McQuade added.
Mueller concluded his investigation in March of 2019, but the public heard little from the special counsel until May, telling reporters, “The report is my testimony.”
He would later appear before Congress, but by that point Barr had already characterized Mueller’s findings in a May letter to lawmakers that diminished report findings critical of Trump’s behavior.
It was a letter, it was later revealed, that Mueller took issue with; he said it “did not fully capture the context, nature, and substance of this office's work and conclusions.”
Both McQuade and Weissmann cautioned that any public statements would need to be carefully tailored to avoid any complications for the investigations.
But Weissman wrote that he sees a role for providing “public enlightenment.”
“Neither the current special counsel regulations nor Justice Department rules require Mr. Smith to take a vow of silence with the American public. His ability to explain and educate will be critical to the acceptance of the department’s mission by the American public,” he wrote.
“It will permit Mr. Smith to be heard directly and not through the gauze of pundits and TV anchors; it will allow the public to directly assess Mr. Smith, a heretofore little-known figure; and it will permit Mr. Smith to counteract those strong forces seeking to discredit or misleadingly shape the narrative about the investigations.”
Matt Miller, who served as the Justice Department spokesperson under the Obama administration, said while Mueller may have been too reticent to speak, “there’s a danger in overcorrecting.”
He said Smith and the department should correct the factual record, but noted that anything beyond that “can do far more benefit than damage to the case.”
“There's a big difference between [the Mueller] case and this one, which is this one can end in a prosecution. ... So to some extent, a special counsel doesn't need to worry about the press coverage he's getting. He needs to worry about bringing a case that can stick,” Miller said, a possibility he sees as aided by the “overwhelming evidence of Trump's guilt” in the Mar-a-Lago case.
Trump has already railed against the appointment of a special counsel, complaining about Smith’s wife, who in her work as a producer contributed to a film about Michelle Obama.
“This is just a small amount of information from the wife of the hard-line Radical Left Special Counsel (prosecutor), an acolyte of Eric Holder and Barack Hussein Obama,” Trump wrote on his social media platform on Tuesday.
Smith’s appointment came as a surprise to some, who had cautioned against the appointment of a special counsel.
Miller said it gives Trump “a foil to rally against,” but that he sees little value in trying to push back against Trump taunts.
“It is a mistake to think that you can fight an information war with Donald Trump and convince the people who are listening to him that he's wrong. Getting out and doing battle with the former president – there's very little upside in doing it, and you risk ruining your own reputation,” he said.
“The press can be annoying and people attacking you can be annoying. But at the end of the day, you have a more powerful tool than any of that. And that's to bring criminal charges against people. So when you're swinging that big a bat, you don't need to worry about some of the attacks you get along the way.”
Smith has thus far issued one public statement vowing “independent judgement,” released shortly after a press conference from Attorney General Merrick Garland in which he said he saw the appointment as necessary given the extraordinary circumstances of the case.
McQuade said she hopes Smith will embrace some communication with the public as a way to engrain faith in a process Garland hopes will help insulate the department ahead of what could lead to a history-making prosecution.
“The more we hear from Jack Smith, the more the public will trust him and understand what it is he's doing. So I think he can do it in a way that still respects the rights of those under investigation,” she said.
She pointed to Justice Department rules that greenlight speaking about cases in limited circumstances if it’s necessary to inform the public.
“I think that exception comes into play here where the public needs a lot of assuring if there are critics who are criticizing [that] the Justice Department is acting for political motives.”
