An International Prosecutor as U.S. Special Counsel

Abstract

The appointment of Jack Smith to investigate former President Donald Trump brings to the fore the essential qualities for special counsels who act when a conflict of interest precludes investigation by the Department of Justice. Most attention on Smith has centered on his domestic work and its correlation with a special counsel’s responsibilities. That emphasis, however, obscures the most salient line on his resume: international investigator and prosecutor.

This Article argues that a prosecutor with international criminal justice expertise (an “international prosecutor”) is the best choice for special counsel when the rule of law is at stake because an international prosecutor operates where the rule of law has failed. Vindicating and restoring the rule of law is the sine qua non of an international prosecutor’s duty. Fulfilling that duty often demands that international prosecutors investigate and prosecute the highest government officials, including heads of state, while also confronting continued attacks on the legitimacy of the prosecution, the administration of justice, and the witnesses who testify. No domestic lawyering has quite the same resonance.

In light of the uncertainty regarding the future structure of the special counsel role, this Article offers concrete suggestions for the specific qualifications of those holding the position, particularly when the rule of law is under attack.