The Government Might Shut Down. What Will That Mean for Special Prosecutor Jack Smith?

Even if House Republicans tip the government into a shutdown this weekend, the two hugely consequential prosecutions of Donald Trump being pursued by the federal government under special prosecutor Jack Smith will continue undeterred.

That’s because Smith’s work is not actually funded through legislation that Congress controls, as per a recent DOJ statement of expenditures. Instead, Smith’s office is funded by a “permanent, indefinite appropriation for independent counsels.” And typically upon being assigned, special counsels are given a set budget and are allowed to spend it as they see fit.

Most of the Department of Justice’s operations, in fact, are considered “an activity essential to the safety of human life and the protection of property,” according to a DOJ contingency plan, and can stay running in the event of a government shutdown. This is in accordance with the Antideficiency Act, which stipulates how federal employees can and can’t spend government money in the absence of a federal budget.

In fact, about 96,000 DOJ employees will be exempt from any mandatory furloughs because of a government shutdown—84 percent of its staff. That means both of Smith’s Trump prosecutions—the classified documents and the 2020 election interference cases—shouldn’t slow down much because of a government shutdown. Neither will Trump’s prosecutions in New York (the hush money case) or Georgia (the other election interference case) since neither are federal cases. (Civil litigation, however, is impacted during a government shutdown “to the extent that this can be done without compromising” the safety of human life or the protection of property.)

None of this means that House Republicans don’t wish they could shut down Jack Smith’s funding. Members of the hard-right House Freedom Caucus—as well as Marjorie Taylor Greene, who got kicked out of that caucus—have railed against the office of the special prosecutor, advocating legislation that prohibits the use of federal money to pay for Smith’s investigations and criminal cases against Trump. (Georgia Rep. Andrew Clyde has committed to introduce two amendments to eliminate federal funding for all three prosecutors—Smith, Fani Willis, and Alvin Bragg.)

But that probably won’t go anywhere. The Democrat-led Senate isn’t going to approve appropriations bills that strip the special counsel’s office of resources. And it seems that the hard-liners threatening to shut the government down are far more focused on their demands for border security and incredibly draconian spending cuts to safety net programs.

Congress has until Oct. 1 to pass new spending legislation. If the members can’t reach a consensus this weekend, the government will shut down on Sunday, Oct. 2, at 12:01 a.m. Jack Smith will continue on his merry way.