Trump's new nemesis: Special counsel 2.0 unlikely to be Mueller repeat

Illustration: Aïda Amer/Axios

Donald Trump and his allies have ramped up their war against newly appointed special counsel Jack Smith, reviving a playbook they hope will defang the latest unprecedented legal threat bearing down on the former president.

Why it matters: This isn't 2017. The political and legal conditions that allowed Trump to emerge virtually unscathed from Robert Mueller's Russia investigation no longer apply. No amount of mudslinging — or claims he "won't partake" in the investigation — will protect Trump from indictment if Smith determines he has the goods.

• "I was described by Steve Bannon … as a pit bull," former top Mueller prosecutor Andrew Weissman tweeted. "Jack Smith makes me look like a golden retriever puppy."
• "Jack Smith came after me. If he goes after Donald Trump with the same unrelenting ferocity, Trump will be in trouble," Intercept journalist James Risen wrote in a column detailing Smith's role in a CIA leak prosecution.

Driving the news: Trump's allies on Capitol Hill and in conservative media have already accused Smith — who is still working remotely from Europe, where he was a war-crimes prosecutor at The Hague — of political bias, citing his wife's donations to Democrats.

• Garland appointed Smith to avoid the perception of a conflict of interest after Trump declared his 2024 candidacy, but that hasn't stopped some Republicans from accusing the registered independent of being a secret liberal.
• Sen. Ted Cruz (R-Texas), Rep. Elise Stefanik (R-N.Y.) and Rep. Jim Jordan (R-Ohio) are among those who have sought to discredit Smith's appointment, branding it as the latest example of DOJ "politicization" under President Biden.

Catch up quick: Smith, a widely respected veteran federal prosecutor, was tapped by Attorney General Merrick Garland to take over two of the most explosive investigations involving a former president in modern history.

• The first is the Justice Department's sweeping probe into Trump's efforts to interfere with the lawful transfer of power after the 2020 election, including the scheme to certify false slates of electors on Jan. 6, 2021.
• The second is examining whether Trump illegally retained classified documents at Mar-a-Lago and obstructed the government's efforts to get them back.

Between the lines: At least three major factors distinguish the new special counsel from the challenges and constraints of the Mueller investigation:

1. Protection: Trump is no longer in office, meaning the Justice Department policy that barred Mueller from indicting a sitting president does not apply. The tools Trump wielded to discredit and jam up the investigation — threatening to fire DOJ officials, dangling pardons and using his bully pulpit — are no longer available to him. Nor is his loyalist Attorney General Bill Barr, who cushioned the blow of the final Mueller report by releasing a summary before making it public.
2. Timing: Both Garland and Smith have stressed that the appointment will not slow the pace of either investigation. Smith is inheriting teams of prosecutors and agents that have already made significant headway, unlike Mueller, who had to "fly and build the plane simultaneously," as Weissman wrote in a recent N.Y. Times column.
3. Scope: The sprawling Mueller probe involved both criminal and counterintelligence elements, with much of the key information buried in the bowels of a hostile foreign power. By comparison, the House Jan. 6 committee has already unearthed massive amounts of evidence expected to be referred to DOJ, while the Mar-a-Lago classified documents case is viewed by many legal experts as open-and-shut.

The bottom line: The lionization of Mueller by online liberals ended in disappointment and reinforced Trump's Teflon reputation.

• Smith, like Mueller, is only human. But the similarities between the two special counsels' situations largely end with the title they share.
• In 2010, after being criticized for closing corruption cases into members of Congress, Smith told the N.Y. Times: "[I]f I were the sort of person who could be cowed — ‘I know we should bring this case, I know the person did it, but we could lose, and that will look bad,’ I would find another line of work."

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