Special Counsel for Trump Investigations: Garland Names Special Counsel for Trump Inquiries

Oct 16, 2023

The attorney general named Jack Smith, a veteran prosecutor, to oversee the Mar-a-Lago documents and Jan. 6 investigations. The appointment is a way for the Justice Department to insulate the inquiries from political considerations.

Glenn Thrush, Charlie Savage, Maggie Haberman and Alan Feuer

WASHINGTON — Attorney General Merrick B. Garland appointed a special counsel on Friday to take over two major criminal investigations involving former President Donald J. Trump, examining his role in events leading up to the Jan. 6 attack on the Capitol and his decision to retain sensitive government documents at his home in Florida.

In naming Jack Smith, the former head of the Justice Department's public integrity section and a veteran war crimes prosecutor, Mr. Garland is seeking to insulate the department from claims that the investigations into Mr. Trump are motivated by politics.

Mr. Garland said the political intentions of Mr. Trump and President Biden prompted him to take what he described as an extraordinary step. Mr. Trump announced on Tuesday that he would pursue a third bid for the presidency in 2024, and Mr. Biden has indicated that he is likely to run as well.

"Such an appointment underscores the department's commitment to both independence and accountability in particularly sensitive matters," said Mr. Garland, who retains final say over whether Mr. Trump is charged with a crime after Mr. Smith presents recommendations.

Mr. Garland and Mr. Smith emphasized that the decision would not slow the pace of either investigation, particularly the documents inquiry, which is advancing faster than the Jan. 6 case. In a statement, Mr. Smith vowed that the investigations would move quickly "to whatever outcome the facts and the law dictate."

Mr. Trump wasted little time in attacking the appointment. During a black-tie event held by a political group allied with him at his private club in Florida on Friday night, he complained about "the appalling announcement today by the egregiously corrupt Biden administration," adding, "This horrendous abuse of power is the latest in a long series of witch hunts."

Repeatedly calling the appointment "unfair," Mr. Trump said, "They want to do bad things to the greatest movement in the history of our country, but in particular, bad things to me."

White House officials said they were not involved in the decision.

Special counsels usually have more autonomy than ordinary prosecutors but ultimately report to the attorney general. If Mr. Smith concludes that there is sufficient evidence to indict Mr. Trump, for instance, Mr. Garland would still have to sign off.

Even before Mr. Smith's appointment, there were signs that prosecutors in both cases were accelerating their investigations after a brief slowdown before the midterm elections.

In recent days, the Justice Department subpoenaed documents from Mr. Trump's 2020 campaign and from Save America, the political action committee his aides formed shortly after Election Day two years ago as Mr. Trump tried to overturn the results, according to two people briefed on the matter.

A now-dormant super PAC created by Mr. Trump called Make America Great Again and a joint fund-raising committee also received subpoenas, indicating the Justice Department is trying to establish whether Mr. Trump's aides knew he had lost but continued to raise money to fight the outcome.

Separately, a handful of Mr. Trump's aides were alerted to subpoenas in connection with the documents case, according to three people briefed on the matter.

Mr. Garland's move has the practical effect of merging two concurrent investigations that had not officially intersected before Friday. The confluence was, perhaps, inevitable: In recent weeks, some witnesses had been contacted about both inquiries, and many of the Trump associates who supported his false assertions about the 2020 election have vociferously backed him in the documents case.

A senior department official emphasized that Mr. Smith was registered as a political independent, and Mr. Garland made a point of expressing gratitude to federal prosecutors and F.B.I. agents already working on the investigations, some of whom have been targeted by Trump supporters.

Mr. Smith has served as the chief prosecutor at a special court in The Hague prosecuting war crimes in Kosovo since 2018. A Justice Department official said he would soon relocate to Washington, but he was not present for the announcement because he recently injured his knee in a biking accident.

As a prosecutor in the Eastern District of New York, Mr. Smith was known for his confidence, and his willingness to plunge into difficult and politically sensitive cases, former colleagues said.

"Jack is the consummate prosecutor and public servant: intelligent, balanced and fair," said James McGovern, a partner at Hogan Lovells who worked with Mr. Smith for years at the federal prosecutor's office in Brooklyn. "I have no idea what his political beliefs are because he's completely apolitical. He's committed to doing what is right."

Even though Mr. Garland cast his decision as an effort to ensure public faith in the impartiality in the department's investigations of Mr. Trump, it remains unclear if Mr. Smith's appointment will influence public perception in a meaningful way.

Mr. Trump and his supporters already claim Mr. Biden has weaponized the department to target his chief political enemy. A day before Mr. Garland's announcement, House Republicans signaled their intention to investigate the department when they take control of the chamber in January. And many Democrats and anti-Trump Republicans will be deeply unsatisfied with anything short of Mr. Trump's indictment and conviction.

Still, if he abides by Mr. Smith's recommendations, Mr. Garland can say he was adhering to the guidance of an arbiter with a greater degree of independence than prosecutors in the department's typical line of authority.

The order appointing Mr. Smith, signed on Friday by Mr. Garland, named Mr. Trump in connection with the documents case. It also authorized the special counsel to "conduct the ongoing investigation into whether any person or entity violated the law" in connection with the "lawful transfer of power" after the 2020 elections. But it said the U.S. attorney for the District of Columbia would remain responsible for cases involving those who were at the Capitol on Jan. 6.

The department has been investigating the actions of Mr. Trump and his close associates as part of its far-reaching investigation into the Jan. 6 attack, resulting in 900 prosecutions. An element of that inquiry has focused on the so-called fake electors scheme, in which allies of Mr. Trump assembled slates of purported electors pledged to Mr. Trump in swing states won by Mr. Biden.

The documents investigation began more quietly, with escalating requests from officials at the National Archives, who requested hundreds of records Mr. Trump shipped from the White House to his private resort and residence, Mar-a-Lago. That changed in early August, after federal agents searched the property and recovered a trove of sensitive government documents, including some bearing the most restrictive classification markings, even as Mr. Trump's legal team said all such material had been returned.

The documents case has increasingly centered on the actions of Mr. Trump, and those around him, after the Justice Department obtained a subpoena in May to recover the material.

In the affidavit requesting the search, federal prosecutors cited a section of the Espionage Act that makes it illegal to possess national security documents that could be obtained by a foreign power and an obstruction of justice statute.

Special counsels can be appointed for high-level investigations when there can be a conflict of interest, or the appearance of it. They can only be removed if they commit misconduct, and the department must tell Congress if an attorney general overrules some step a special counsel wants to take.

Department officials, speaking on the condition of anonymity, said Mr. Smith was among the first people considered when Mr. Garland and his team began mulling the idea of appointing a special counsel this year, because of his wide-ranging experience and reputation as a hard-nosed but fair prosecutor.

Mr. Smith, a graduate of Harvard Law School, had investigated war crimes for the International Criminal Court and helped prosecute officers in a police brutality case in New York before taking on the role that most overlaps with his new assignment: running the Justice Department's public integrity section from 2010 to 2015.

No assignment is comparable to investigating a former president and active presidential candidate. But Mr. Smith has a long track record in handling high-profile government corruption investigations, including cases involving members of Congress.

Some of the cases he investigated resulted in a decision not to file charges.

One of the most notable cases the public integrity section did pursue under his watch was the successful prosecution of the former Republican governor of Virginia, Bob McDonnell, on corruption charges — a conviction later overturned by the Supreme Court. He also oversaw the 2013 prosecution of a Republican congressman from Arizona, Rick Renzi, who was later pardoned by Mr. Trump.

Mr. Smith also helped direct the prosecution of Jeffrey Sterling, a former C.I.A. officer. He was convicted of mishandling national security secrets and of obstruction of justice in connection with accusations that he leaked information about a secret operation to sabotage Iran's nuclear program to a reporter for The New York Times.

"Jack is not political at all," said Lanny Breuer, the former assistant attorney general of the Justice Department's criminal division, who recruited Mr. Smith to the job. "He is straight down the middle."

Mr. Smith then worked as the No. 2 federal prosecutor in Nashville, before returning to Europe to work on war crimes cases.

For Mr. Trump, it will be a return to a familiar dynamic. The first half of his term, he faced a special counsel investigation led by Robert S. Mueller III, who scrutinized various links between his 2016 campaign and Russia.

Mr. Trump's supporters have already accused the Justice Department under the Biden administration of investigating him for political reasons, and some Republicans have floated the idea of impeaching Mr. Garland if he pursues charges against the former president. That tension will only become more pronounced now that Mr. Trump is a candidate for president again.

The department has "a true conflict of interest, real or perceived," said Claire Finkelstein, a law professor at the University of Pennsylvania and the founder of the Center for Ethics and the Rule of Law. "Garland won't be running for president, but his direct boss will be. It would be difficult to put measures in place that would reassure people that the Justice Department was acting with independence on the Trump investigation."

Katie Benner, Adam Goldman and Michael S. Schmidt contributed reporting.

An earlier version of this article misstated the political affiliation of a former governor of Virginia, Bob McDonnell. He is a Republican, not a Democrat.

How we handle corrections

Katie Benner

Attorney General Merrick B. Garland has long said that the Justice Department could handle any investigation of former President Donald J. Trump — including dealing with any real or perceived political land mines inherent in that undertaking — by strictly following the rule of law.

The department's ability to navigate such difficult terrain, Mr. Garland suggested, would show the American public that it operated above the partisanship that marked the Trump era, and acted as neither the weapon nor the enemy of any political party. In his estimation, there was no need to appoint a special counsel to oversee any criminal inquiries into the former president.

But Mr. Trump upended Mr. Garland's approach by formally announcing his 2024 White House run. The ongoing investigation into whether a former president mishandled national security documents and obstructed investigators was recast as an investigation by President Biden's Justice Department into a top political rival — a perceived conflict of interest that Mr. Garland could not overcome.

In announcing on Friday that he had appointed Jack Smith, a former career Justice Department prosecutor, to serve as a special counsel, Mr. Garland acknowledged as much.

"Based on recent developments, including the former president's announcement that he is a candidate for president in the next election, and the sitting president's stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel," Mr. Garland said.

Mr. Garland's decision was not made lightly, and Mr. Trump's declaration this week that he would run for office was the tipping point in a deliberation that has gone on for some time, according to a department official who spoke on condition of anonymity to discuss an ongoing investigation.

Officials within the department knew that they would need to think broadly about how they approached the investigations into Mr. Trump, given his public statements about running for office and his interactions with investigators. Those discussions included the possibility that events could trigger the department's need to appoint a special counsel.

Ultimately, Mr. Garland believed that he didn't have a choice.

Michael D. Shear

Karine Jean-Pierre, the White House press secretary, said that President Biden did not know that Attorney General Merrick Garland was going to appoint a special counsel to handle two major criminal investigations involving former President Donald J. Trump: "He was not aware, we were not aware. We were not given any advanced notice."

Maggie Haberman

Former President Donald J. Trump attacked the appointment of a special counsel to handle investigations related to his efforts to stay in power and his possession of classified documents at his members-only club and residence in Florida.

"I have been going through this for six years — for six years I have been going through this, and I am not going to go through it anymore," Mr. Trump told Fox News Digital. "And I hope the Republicans have the courage to fight this."

He went on, "I have been proven innocent for six years on everything — from fake impeachments to Mueller, who found no collusion, and now I have to do it more?"

"It is not acceptable. It is so unfair. It is so political," Mr. Trump said, adding he would not "partake" in the special counsel inquiry.

Katie Benner

In a statement issued Friday, the new special counsel, Jack Smith, said that he would "conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice." He said that the investigations would "not pause or flag" under his watch and that he would "move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate."

Maggie Haberman

Smith was a federal prosecutor in an office that was among the first to investigate a young Donald Trump in the 1970s, on possible fraud charges. It was a roughly six-month investigation and closed without charges. Trump soon after began telling people about his ordeal.

Maggie Haberman

A Trump spokesman responds as we have heard Trump aides respond before: "This is a totally expected political stunt by a feckless, politicized, weaponized Biden Department of Justice."

Katie Benner

While a prosecutor in the Eastern District of New York, Smith was known as a confident, charismatic person who did not shy away from difficult or controversial cases. "Jack is the consummate prosecutor and public servant: Intelligent, balanced and fair," said James McGovern, a partner at Hogan Lovells who worked with him for years at the federal prosecutor's office in Brooklyn. "I have no idea what his political beliefs are because he's completely apolitical. He's committed to doing what is right."

Maggie Haberman

Trump is said to have told some allies that the idea of a special counsel infuriated him, given his experience with the length of the Mueller investigation. He believes it could hang over him for months. Nonetheless, it might make a prosecution more distant.

Maggie Haberman

Trump advisers say his lawyers have made clear to him that declaring a candidacy wouldn't prevent a possible indictment. But he is also said to be aware he can use the unprecedented circumstances to muddy the waters.

Alan Feuer and Charlie Savage

Jack Smith, the Justice Department's newly appointed special counsel, will come to the task of investigating former President Donald J. Trump with a wealth of experience: He has been prosecuting criminal cases for nearly three decades.

Mr. Smith got his start in the 1990s as a prosecutor in the Manhattan district attorney's office and soon moved to a similar job at the United States Attorney's office in Brooklyn. There, he served in a number of supervisory positions, according to his Justice Department biography, and worked on an assortment of cases, many involving public corruption.

From 2008 to 2010, Mr. Smith worked as the investigation coordinator in the Office of the Prosecutor at the International Criminal Court in The Hague. In that role, he oversaw high-profile inquiries of foreign government officials and militia members wanted for war crimes, crimes against humanity, and genocide.

Returning to the United States, Mr. Smith served from 2010 to 2015 as chief of the Justice Department's public integrity section, which investigates politicians and other public figures on corruption allegations.

Two of Mr. Smith's more notable corruption cases against high-profile political figures had opposite results. His team initially won a conviction against the former Gov. Robert McDonnell of Virginia, a Republican, but the Supreme Court overturned it.

It also won a conviction of former Representative Rick Renzi, Republican of Arizona, who was sentenced to three years in prison. (Mr. Trump pardoned Mr. Renzi among a flurry of clemency actions in January 2021, in his last hours as president.)

When Mr. Smith took over the public integrity section, it was reeling from the collapse of a criminal case against former Senator Ted Stevens, Republican of Alaska. In Mr. Smith's first few months on the job, the section closed several prominent investigations into members of Congress without charges.

But in an interview that year with The New York Times, Mr. Smith denied that the section on his watch had lost its nerve.

"I understand why the question is asked," Mr. Smith said at the time. "But if I were the sort of person who could be cowed — ‘I know we should bring this case, I know the person did it, but we could lose, and that will look bad’ — I would find another line of work. I can't imagine how someone who does what I do or has worked with me could think that."

A graduate of Harvard Law School, Mr. Smith has also worked in top positions at the United States Attorney's office for the Middle District of Tennessee in Nashville.

Mr. Smith will take on the role of special counsel after leaving his current position as a specialist prosecutor based in The Hague investigating war crimes. He will remain in the Netherlands for some time, according to the Justice Department, in order to recover from a recent bicycle accident.

An earlier version of this article misstated the political affiliation of a former governor of Virginia. Robert McDonnell was a Republican, not a Democrat.

How we handle corrections

Katie Benner

Legal experts have said that Trump's decision to run presents a conflict of interest for the department, real or perceived. Garland's boss will be running against Trump, and it will be difficult to implement any measures that would reassure people that investigation was not a political attack.

Glenn Thrush

It is notable that Garland has used the term "obstruction" at least twice — the obstruction case, along with possible violations of the Espionage Act, are considered to be the two most likely charges that could be brought against Mr. Trump.

Maggie Haberman

But Garland makes clear that Trump created a conflict he didn't feel he could ignore.

Maggie Haberman

That Garland is making the charging call is significant.

Glenn Thrush

Garland said he was "confident" that the appointment of the special counsel would not slow down either investigation — and emphasized that he will ultimately make the decision on whether or not to prosecute.

Michael S. Schmidt

Garland says Jack Smith, the special counsel, will start immediately. But Smith has to get back to the United States first — he has been living and working at The Hague.

Michael S. Schmidt

In regards to the Justice Department's Jan. 6 investigation, a good way to think of the special counsel is that he will investigate anyone who played a role in trying to overturn the election but was not a rioter on the ground.

Michael D. Shear

Officials at the White House said on Friday that they were "not involved" in the decision by Attorney General Merrick B. Garland to appoint a special counsel to investigate former President Donald J. Trump.

Asked whether President Biden or others in the administration were aware of the attorney general's decision ahead of time, a White House aide noted that the Justice Department makes decisions about criminal investigations independently of the president or his White House staff.

The official referred all questions about the appointment of a special counsel to the Justice Department.

Mr. Trump announced on Tuesday that he is running for president again. Mr. Biden said last week that he "intends" to run in 2024 but would talk with his family before announcing a decision early next year.

When Mr. Trump was president, he repeatedly sought to interfere with his attorney general and other Justice Department officials, harassing them on Twitter and repeatedly pressuring them to do his bidding.

Mr. Biden has made a point to insist that he would reverse those practices and return to the more traditional practice of past presidents, who distanced themselves from criminal investigations being conducted by the department, especially when they involved political figures.

Aides have repeatedly declined to discuss the investigations being conducted by the Justice Department into the former president. That appears unlikely to change now that a special counsel has been appointed.

Michael S. Schmidt

Garland points out the major reasons why he has made this move: Trump has announced that he's running for president — and the current president, who oversees the department, has indicated he will most likely run again for president.

Michael S. Schmidt

Special counsels were created to put distance between the politics of the moment and the investigative work of the Justice Department. Under the regulations for special counsels, the Justice Department will have to tell Congress about any major investigative moves that the special counsel wanted to take that were overruled by senior department officials. Also, the special counsel can be fired only for cause — essentially, for not doing their job.

Maggie Haberman

While officials are generally mindful of prosecutorial activity within 60 days of an election, grand jury activity was still going on in connection with the documents case.

Maggie Haberman

The special counsel could end up simply relieving Merrick Garland of a charging decision. Or, the special counsel could end up running the investigation for many months into the presidential election, which would be something of a boon to Trump.

Michael S. Schmidt

This special counsel will have a different feel from the investigation conducted by Robert S. Mueller III into the Trump campaign's ties to Russia and whether Mr. Trump obstructed justice. In the Mueller investigation, Mr. Trump, as president, could fire Mr. Mueller at any point. That created a massive level of tension between the Justice Department and the White House. And, in another difference from the Mueller investigation, a significant amount of investigative work has already been done by federal authorities.

Glenn Thrush

Attorney General Merrick B. Garland and his team have long considered creating a layer of protection for the Justice Department by tapping a special counsel, a veteran prosecutor appointed by Mr. Garland to run the day-to-day investigation. But even with the appointment of a special counsel, any final decisions on whether to charge former President Donald J. Trump would still be made by Mr. Garland and the department's senior leadership.

Under federal law, a special counsel functions, in essence, as a pop-up U.S. attorney's office with broad discretion over every aspect of an investigation in "extraordinary circumstances" in which the normal chain of command could be seen as creating a conflict of interest.

An attorney general still has the right to approve or discard a special counsel's recommendations. But if Mr. Garland were to reject the counsel's recommendation, he would have to inform Congress, a safeguard intended to ensure transparency and autonomy.