Attorney General Merrick Garland has appointed Jack Smith as special counsel responsible for two Justice Department investigations involving former President Donald Trump, he said in a statement Friday. You can use the appointment order here.
The announcement is a major development that underscores the seriousness of Trump’s investigations — one into his attempt to overturn Joe Biden’s 2020 election victory, the other into his handling of classified documents.
It is unclear whether the move will change much of those investigations, which were already progressing quite well. That is, it’s not about appointing a new hard-line prosecutor to take on Trump. It is more an attempt to allay fears that the Justice Department’s decision-making will be politically driven.
In the announcement, Garland referenced Trump launching his presidential campaign earlier this week, as well as Biden’s own comments that he is likely to run for re-election as factors influencing his decision to appoint special counsel.
Smith is a career prosecutor who previously headed the Justice Department’s Public Integrity Section stepping down from the DOJ in 2017. After his departure he has was appointed Chief Prosecutor of a European Union body that investigates war crimes in Kosovo and worked from The Hague. He is still overseas and did not appear at Garland’s announcement.
A special counsel operates outside the Justice Department’s ordinary chain of command and, in theory, is better insulated from pressure to carry out the orders of DOJ bosses. Additionally, by regulationscan the special counsel be fired only for “good cause”.
However, the special counsel is not a truly independent operator. The Attorney General can still overrule all his decisions – although the AG would have had to notify Congress that he had done so. This effectively means that any decisions regarding possible charges against Trump or others will still be reviewed by Garland.
In practice, however, Smith’s recommendations are likely to carry a lot of weight, and much may depend on his judgment. For example, if he advises against impeaching Trump, it seems highly unlikely that senior department heads would overrule him. And if he recommends charges, Garland may be hesitant to brush him aside there, too.
What Jack Smith will and will not investigate
Smith is put in charge of two important investigations.
The first investigation, Garland said, is “the investigation into whether an individual or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or with the certification of the Electoral College vote on or about Jan. 6, 2021. “
Translation: This is about whether Trump or people close to him broke any laws in their attempt to overturn Biden’s election victory.
Smith is not taking over the investigations into the rioters who actually broke into the Capitol on January 6. Those investigations, which led to hundreds of prosecutions already, will still be overseen by the US Attorney’s Office for the District of Columbia. (The House committee’s Jan. 6 investigation is a separate matter; they can’t prosecute anyone and are focused on writing a report on their findings before Republicans take over the chamber in January.)
The second investigation assigned to Smith is “the ongoing investigation regarding classified documents and other presidential documents, as well as the possible impediment of that investigation,” Garland said.
This is the inquiry into whether Trump mistakenly brought classified documents to his Florida club, Mar-a-Lago, or elsewhere, but also note the reference to possible obstruction. Bloomberg’s Chris Strohm reported in October that some DOJ prosecutors believe there is enough evidence to charge Trump with obstruction, apparently because of his lack of candor about whether he had returned all the documents in his possession.
Don’t expect Jack Smith to be Robert Mueller
The obvious comparison to Smith’s nomination is the last special counsel to investigate Trump: Robert Mueller. But this appointment seems different in some important ways.
First, Mueller was appointed special counsel to take over an investigation threatening the incumbent president — his appointment was intended to send the message that Trump’s ties to Russia would indeed be vigorously investigated, even as the Department was Justice Department led by Trump appointees.
Here, the rationale is actually the opposite. Smith’s nomination is intended to allay concerns that any final decisions on whether or not to indict Trump will be dictated by politics rather than law. (Good luck with that.)
Mueller also built his own team to vastly expand the FBI’s pre-existing investigation into Trump’s ties to Russia, working on it for nearly two years. It’s not clear if Smith will revise things that often – or take that long.
Investigations into Trump’s election interference and classified documents have been underway at the DOJ for some time and appear to be fairly advanced. Smith could just take over the existing investigations and have their lawyers and agents work with him.
“The pace of investigations will not stop or slow down under my watch,” Smith said said in a statement Friday. “I will make an independent judgment and proceed with the investigations expeditiously and thoroughly, regardless of the outcome that the facts and the law dictate.”