On November 18, U.S. Attorney General Merrick Garland appointed Jack Smith as special counsel and gave him independent responsibility for two criminal investigations affecting former President Donald Trump. Appointing a special counsel was the right thing to do. It was done at the right time. Jack Smith is the right person for the job.
Jack Smith replaced me in The Hague when I left in April 2018. The job we both had in The Hague was to investigate and, if the evidence met our strict standard for charging, to prosecute war crimes and crimes against humanity committed by Kosovo’s leaders in 1998, 1999 and 2000 during Kosovo’s fight for independence from Serbia.
During my time as the lead prosecutor of the European Union’s Special Investigative Task Force (SITF) in Brussels from 2015 to 2016, and then when I became the first chief) prosecutor in The Hague in 2016, the people we investigated included the senior political leadership of Kosovo, among them its sitting president Hasim Thaci.
The work had been going on for over six years when Jack took over for me in 2018. In short order he mastered the vast amount of information and evidence collected since work began in 2012. He soon grasped the complexities and problems associated with the investigation. He quickly caught up with the investigators, prosecutors and staff who had been on the case for years, impressing them by his work ethic, his intelligence and his manner, earning their respect. He skillfully led what remained to be done, made good decisions based on the evidence and the law, and shaped the indictments that resulted; including one against the former president of Kosovo, who will go to trial in The Hague sometime next year.
Before he was chosen to replace me, I knew and respected Jack’s reputation for independence. The job I was leaving needed a person who could continue to resist the immense pressure the prosecutor’s office was under to do something, anything, and do it quickly. It needed someone who would act deliberately and independently. I was delighted when Jack was picked to replace me.
As he did in The Hague, Jack is, I am certain, at work right now immersing himself in the details of the ongoing investigations he is taking over as special counsel. Just as he did in The Hague, he is mastering the evidence that has been collected. He is listening and learning. He is gaining the trust and respect of the people already working on the cases. As he did in The Hague, he will expertly lead what remains to be done. He will do everything he must to put himself in a position to make appropriate prosecution decisions, including the historic decision whether to prosecute a former president, just as he did in the case of the president of Kosovo.
Appointing a special counsel was not Jack’s choice. That decision was made by Judge Garland, a man of impeccable integrity. Choosing Jack as special counsel, appropriately distancing himself from these investigations, and investing Jack with all the independence he insisted on before he accepted the appointment, was the apolitical, ethical and professional decision demanded by the circumstances.
Far from “weaponizing” the Department of Justice as the former president and some of the extreme members of Congress and the Senate have falsely, unwisely, and cynically claimed since Jack was named special counsel, with this appointment and with what he has done since becoming attorney general, Garland is “professionalizing” DOJ. Under his leadership the department is clawing back some of the reputation the last administration squandered.
With Jack Smith in Washington doing what needs to be done in the professional and ethical way he will do it, this distasteful and destructive episode in our history brought about by people who selfishly consider themselves above the law, who have shown disdain for our institutions, people whose conduct must be investigated if the rule of law means anything and is to have a future, will come to its proper end, fairly, objectively, and in due time.
| Courtesy Photo David Schwendiman
David Schwendiman is an adjunct professor of law at the University of Utah’s S.J. Quinney College of Law. He graduated from that college in 1976, served as assistant and interim U.S. attorney for the District of Utah and, from 2006 to 2009, was an international prosecutor in the Special Department for War Crimes of the State Prosecutor’s Office in Bosnia and Herzagovina, investigating and prosecuting atrocities committed during the war in the former Yugoslavia, and was the chief prosecutor of the Kosovo Specialist Prosecutor’s Office in The Hague from 2016 to 2018.
