I have long opposed the appointment of special counsel to investigate and prosecute targeted individuals. Just as to a hammer, everything looks like a nail, so to a special prosecutor, evidence points to his target. Investigating events—such as Iran-Contra—is different. Had Smith been appointed to probe the mishandling of classified material by all former high-ranking officials—not just Trump, but also President Biden, former Vice President Mike Pence, and former Secretary of State Hillary Clinton, among others—and had found that only Trump violated the law, then he could credibly say that the law applies equally to everyone. But by investigating only one such official and prosecuting him without any comparison to others, his claim of equal justice rings hollow.

Moreover, Smith went further than other prosecutors in seeking to vitiate the lawyer-client privilege. The judges have supported him—mistakenly in my view—and much of his case rests on disclosures made by Trump’s lawyers. Other subjects of investigations haven’t had their confidential communications challenged under comparable circumstances. This too raises questions about the equal application of the law.

So the questions raised by the indictment of Trump go beyond whether the evidence gathered against him rises to the level of prosecutable crimes; they raise issues of process and equal justice.

[Fair points all, but a couple of others worth noting, too. The Biden case has its own special counsel probe going on, so we can’t know until it’s over whether we will see a double standard applied (and whether a double standard applies either or whether the cases are appreciably different). The statute of limitation has run out on Hillary Clinton, so that situation is not remediable anyway. Even so, the DoJ clearly applied a double standard in that case with its insistence on “intent” being a critical factor — even though the statute clearly and explicitly states that gross negligence is all that’s necessary for prosecution. Also, while I always like reading Dersh, he seems to be going through the Kubler-Ross five stages of grief the last couple of days, with this one being “bargaining.” — Ed]