Krull: In seeking special prosecutor dismissal, Trump makes argument for recusal

Former President Donald Trump just made an impassioned argument that U.S. Supreme Court Justices Clarence Thomas and Brett Kavanaugh should recuse themselves from ruling on issues regarding the Republican Party.

Surprised?

Well, so was I.

But there’s no other way to read Trump’s fulminations about Jack Smith, the special counsel U.S. Attorney General Merrick Garland just appointed to investigate the former president. Garland did so to avoid conflicts of interest.

Trump has sought to discredit Smith, though, by contending that the special counsel is tainted.

Smith’s conflict, according to Trump?

His wife, Katy Chevigny, worked on Michelle Obama’s documentary, “Becoming.” Chevigny also donated to President Joe Biden’s 2020 campaign.

That, Trump says, should be enough to disqualify Smith from serving as special counsel. The former president also has managed to persuade some leading conservative politicians and commentators to endorse his complaint.

Okay.

Trump’s argument isn’t completely implausible.

In theory, a prosecutor of any kind should serve as truth’s advocate, one who pursues that elusive goal unencumbered by any conflict of interest—or even the appearance of a conflict. Our legal system relies on a public faith that justice will be administered impartially, so anything that undermines such faith undermines justice itself.

Maybe a special counsel shouldn’t have any ties to either political party.

That’s a tough standard, given that we live in an incredibly polarized age in which every human act seems to be viewed through a partisan lens.

But, if that’s what the former president, his allies and his supporters want, so be it.

I’m sure Attorney General Garland can find another special counsel who does not have a family member with any ties, however tenuous, to either political party or any public official.

Having established such a standard for the special counsel, I’m sure the former president and his amen corner will want to see it applied to the bench, too. If a prosecutor is supposed to be an untainted servant to the impartial administration of justice, then surely a Supreme Court justice should be, too.

A special prosecutor, after all, is supposed to be an advocate for a point of view, one who seeks to make the case for a defendant’s guilt. As such, a certain bias — a belief that the facts support a prosecution — is inherent in the work.

A judge, on the other hand, isn’t supposed to be subject to any such biases. He or she is supposed to be above such considerations.

But, if we apply the standard Trump and his followers have set for Smith, Justices Thomas and Kavanaugh clearly fail to meet it.

Smith’s wife may have worked at one time for a former first lady on a project unrelated to politics and donated to a political candidate, but there’s not much other evidence that she was actively engaged in partisan activity.

Or that she ever encouraged the overthrow of the U.S. government.

Thomas’s wife Virginia, on the other hand, has a long history of strident and unrelenting Republican partisanship. She encouraged officials in several states to overturn the legitimate results of the 2020 presidential election so Trump could retain office, even though the voters had rejected his candidacy.

Trump took his case to the courts and appealed, in some instances, all the way to the Supreme Court.

In none of those cases did Thomas recuse himself.

Then there’s Kavanaugh.

Most of the attention focused on Kavanaugh’s elevation to the nation’s highest court dwelt on allegations by at least two women — the precise number is difficult to determine because Trump, as president, placed severe restrictions on the FBI’s investigation into the matter — and the jurist’s admitted great fondness for beer.

Almost forgotten in that sordidness is that his sole qualification for becoming a judge in the first place was his tireless partisan hackery in a series of Republican administrations. For more than a decade, he was the GOP’s go-to political hatchet man, the guy Republicans used to attack Democrats.

If Jack Smith is disqualified from serving as special counsel because his wife once helped Michelle Obama make a movie and donated her own money to Biden’s campaign, then Justice Thomas and Justice Kavanaugh shouldn’t be allowed anywhere near a case involving politics of any sort.

Fair, after all, is fair.

And fairness is doubtless always Donald Trump’s first concern.

John Krull is director of Franklin College's Pulliam School of Journalism and publisher of TheStatehouseFile.com, a news website powered by Franklin College journalism students. The views expressed are those of the author only and should not be attributed to Franklin College.

This article originally appeared on The Herald-Times: Columnist writes special counsel argument can be broadly applied