Smith, a war crimes prosecutor at the International Criminal Court in The Hague, injured his leg in a recent cycling accident and is recovering from surgery. He was tapped Friday to assume control of the Justice Department’s investigation into Trump’s role in efforts to overturn the 2020 election results, as well as the department’s investigation into possible mishandling of national defense secrets at Trump’s Mar-a-Lago residence and private club, where more than 300 documents were classified. recovered a few months after he left the White House.
Attorney General Merrick Garland said it was in the public interest to appoint a special counsel to handle the case, rather than a Justice Department official, to avoid a perceived conflict as Trump launches his 2024 presidential campaign and President Biden – who defeated Trump in 2020 – says he will run as well .
Garland and Smith both vowed that the appointment of a special counsel would not slow down work on either case, and Smith was already involved, albeit from the Netherlands. For example, a court filing Monday said Smith has reviewed the reasons for the months-long court battle between the Justice Department and Trump’s lawyers over the papers seized in the FBI’s August 8 search of Mar-a-Lago.
Investigators see ego, not money, as Trump’s motive in classified papers
A panel of federal appeals court judges in Atlanta is set to hear arguments Tuesday on whether a federal judge was right to appoint an outside legal expert known as a special master to review most of the documents.
Justice Department officials declined to answer questions Monday about the mechanics of starting special counsel. They would not say whether some senior officials who have been involved in investigating Trump will now step down from those jobs, or temporarily leave their agency roles to work in the special counsel’s office.
Mary McCord, a former senior national security official at the Department of Justice, said in this case she does not expect political appointees to work in the special counsel office, although career prosecutors can continue on cases in the new structure.
The Department of Justice must make key personnel decisions to decide which career employees will move to work on the special counsel team. For example, Jay Bratt, who is the head of the Department of Justice’s counterintelligence section, has played a large role in the Mar-a-Lago investigation so far, but is likely to work on other major investigations in the department that are not related to Trump.
Had Bratt been detailed to special counsel, he would not have remained in his current role, McCord said.
That means the Justice Department will have to determine whether it’s better for Bratt to relinquish his other responsibilities and hire a full-time special counsel. McCord said if Bratt remains in his current role, the special counsel may still seek advice from him.
Beyond that type of decision, he said, he doesn’t expect the course of the Mar-a-Lago investigation to change much because of Smith’s appointment — mainly because a criminal investigation is underway, and prosecutors and federal agents have secured key evidence. .
“The idea is that Smith will lead the day-to-day investigation,” McCord said, noting that federal regulations state that Garland can veto the decision to charge Smith if he deems it “improper and inappropriate.”
The status of key investigations involving Donald Trump
Most of Smith’s former colleagues at the Justice Department generally praised him as a dedicated prosecutor who never backed down from difficult cases, although one investigator who worked with him on public corruption cases was less complimentary.
“I think he’s very talented, enthusiastic, fearless, and really dedicated to the prosecutor’s mission,” said Alan Vinegrad, a former federal prosecutor in New York who worked with Smith in the early 2000s. “He would be enthusiastic and throw himself into it.”
Conversely, Jeffrey Cortese, who served as acting head of the FBI’s public corruption unit in 2011 when Smith was his Justice Department counterpart overseeing the Public Integrity Section, said he did not see Smith as fast-acting or effective in prosecuting public officials.
“At that time, it was understood that the fastest way for the death case was to give it to the PIN,” said Cortese, using the common nickname for the Public Integrity Section. “The frequency with which they resist investigative and prosecution techniques is often a point of conflict between the FBI and the Department of Justice.”
It is not uncommon for tensions to flare up between FBI agents and Justice Department officials in corruption investigations, and Smith took over the Public Integrity Section at a fraught time for both agencies.
“When Jack was responsible, assuming a similar series of facts or similar circumstances, I was surprised that PIN would even allow the case to be opened,” said Cortese. “So I wonder why he wants anything to do with the case now.”
Dana Boente, a former senior Justice Department official, said that when he heard on Friday that there would be a special counsel, he immediately started thinking about who to choose, with all the political and practical complexities of the choice. It is not easy.
Boente said the person must have public corruption and national security experience, not be perceived as a partisan – and be willing to take on the task, which means giving up a lucrative private sector job.
“I was rolling through the names, and I really came up with no one,” he said. “I have no one.”
Boente said Smith, whom he knows professionally, did not make a list of possible candidates. But when he heard later in the day that Garland had appointed him, said Boente, he immediately concluded that Smith was a good choice that ticked all the necessary boxes.
The pace and duration of special counsel investigations have been the subject of intense debate in recent years. The 2017 appointment of Robert S. Mueller III as special counsel ended up lasting two years as he probed possible links between Russian election interference and the Trump campaign, and why as President, Trump sought to obstruct justice. Mueller’s investigation has led to several charges, including against people in Trump’s orbit, but no charges against Trump. Mueller also produced a lengthy report on his findings.
Garland inherited a separate special counsel investigation from her predecessor, which is ongoing but expected to wind down in the coming months. Special counsel John Durham, appointed two years ago during the Trump administration to continue the investigation into how the intelligence agencies investigated alleged Russian election interference with the Trump campaign led to two acquittals at trial, and a guilty plea by a former FBI attorney. Durham’s work is also expected to produce a written report.
The defendants accused the US of manipulating evidence at the January 6 Oathkeepers trial
Although a special counsel has more freedom to manage cases and make his own decisions, that person still works for the Department of Justice and ultimately reports to the attorney general.
Brandon Van Grack, a former federal prosecutor who worked as Mueller’s special counsel, said the suspect Smith will not need as much time as Mueller did to get the operation up and running.
Unlike the Russia probe when Mueller’s special counsel was announced, Van Grack said, both the Mar-a-Lago and January 6 investigations appear to already have resources and personnel devoted to them. Mueller assembled a team that includes a number of people who do not work in the Department of Justice; Van Grack said he doesn’t think Smith should have hired as many outsiders as Mueller’s special counsel did.
“Some of the people who stood out the most in the Mueller investigation were the people who were able to make office space and logistics happen in such a seamless way,” Van Grack said. “It’s an incredibly onerous process, and it’s unclear if special counsel Smith will or should take it on.”
Rosalind S. Helderman contributed to this report.