Special counsel Jack Smith may not be in the clear, even after dropping all charges against President-elect Donald Trump.
Smith’s decision to dismiss his cases against Trump on Monday reignited calls for an investigation into his efforts. While it’s unclear if probing Smith is high enough on Trump’s priority list to translate talk into action, some aren’t ready to simply brush Smith’s months-long pursuit aside now that the threat is gone.
Investigating the federal prosecutions against Trump is important “because of the huge cost and ultimate failure,” former federal prosecutor Andrew Cherkasky told the Daily Caller News Foundation.
“Whether that yields findings of criminality is unlikely. However, I think it will find that Smith’s novel legal approach was fraught with issues that should have led a reasonable prosecutor to decline prosecution,” Cherkasky told the DCNF. “Smith is already leaving his special counsel post, but I anticipate some of the lawyers working under him will also be forced out of the [Department of Justice] DOJ for engaging in a legally unsound prosecution.”
Smith’s two Trump prosecutions cost taxpayers upwards of $50 million, according to DOJ reports.
“There is a lot of evidence that the congressional Jan. 6 committee intentionally avoided evidence beneficial to Trump’s position, and if Smith did the same, his conduct could be grounds for more severe consequences,” Cherkasky noted.
The Heritage Oversight Project posted on X Monday that they are preparing a “model indictment” of Smith. Executive Director Mike Howell suggested Smith could be charged under the federal law prohibiting a conspiracy to violate an individual’s civil rights, but told the DCNF there are “other potential avenues as well.”
“Jack Smith and his office must face severe legal, political, and financial consequences for their blatant lawfare and election interference,” Article III Project President Mike Davis like wrote Monday on X. “This includes a federal criminal probe for conspiracy against rights under 18 U.S.C. § 241.”
One of Smith’s charges against Trump was brought under the same conspiracy against rights statute.
Charles Stimson, deputy director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, pointed out that Trump didn’t use his first term to go after Hillary Clinton or those involved in the Russia collusion narrative. “Past is prologue here,” he told the DCNF.
Trump’s attorney general pick Pam Bondi will have other pressing issues to focus on, such as illegal migrants who committed crimes in the U.S. and protecting free speech, Stimson said. She probably won’t be looking into the past, especially when government employees, including prosecutors like Smith, have immunity for actions taken within their job.
“I don’t think they’re going to spend a tremendous amount of time deciding whether Jack Smith, who will not be employed by the Justice Department, should be prosecuted,” Stimson said.
It’s also possible Congress will take up the cause of investigating Smith.
House Judiciary Committee Chair Jim Jordan, along with Republican Georgia Rep. Barry Loudermilk, told Smith’s team in a Nov. 8 letter to preserve all records related to the Trump prosecutions. Republican senators Chuck Grassley of Iowa and Ron Johnson of Wisconsin letter also put Smith on notice to preserve records.
“Due to the apparent political bias of FBI officials that were involved in the genesis of a case against former President Trump, preservation of Special Counsel Smith’s records is more important than ever,” Grassley and Johnson wrote in the Nov. 13 letter. “If a politically-charged case is to be opened, it must be done the right way and free from political bias.”
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