To some extent, the backlash that Jack Smith has been receiving since the unprecedented indictment of former President Donald Trump is unfair — he’s merely a symptom of a larger problem that predates his promotion in 2010 to helm the Department of Justice’s (DOJ) Public Integrity Section and his more recent assignment as special counsel in the Trump documents case. But the backlash is also predictable, as Americans grow increasingly intolerant of what they perceive as two standards of justice.
To be clear, all prosecutions involve discretion — and with that comes the obvious peril of having that discretion influenced by bias. Any prosecutor or commentator that says bias doesn’t creep into all these decisions is lying to themselves and you.
This is likely where the cries of “but her emails” have some merit — the discretion exercised in the Hillary Clinton case of mishandling classified information was entirely different than in Trump’s current case. Of course, the fact patterns are different, so there is no common rubric that would allow a direct comparison, but you could easily write up a damning indictment of Clinton’s misuse and obstruction. Comey acknowledged the FBI avoided doing that because the election was looming and they didn’t want to trigger a constitutional crisis (because he erroneously assumed she would win).
Whether Comey’s decision to inject his invented standard of “no reasonable prosecutor” into the decision about Clinton’s case rises to an abuse of prosecutorial discretion remains debatable. Admittedly he wasn’t even a prosecutor, though
