Three days after former President Donald Trump announced he was vying for the Republican nomination for president, Attorney General Merrick Garland went to an outside hire for help.
Garland named Jack Smith the special counsel in charge of multiple investigations involving Trump, including the highly publicized classified documents probe. Trump said on Thursday that he has been informed that he will be indicted in the case next week.
Who is Jack Smith
Smith is a former federal prosecutor who briefly served as the acting U.S. Attorney for the Middle District of Tennessee in 2017. Prior to his six-month stint as U.S. Attorney in the Trump administration, he was the assistant U.S. Attorney for the district starting in 2015.
Prior to his work in the Middle District of Tennessee, he was chief of the Public Integrity Section within the Department of Justice. The DOJ said his role there was to supervise the litigation of complex public corruption cases across the country.
Before rejoining the DOJ in 2010, he was an investigator coordinator at the International Criminal Court, starting in 2008. In that role, he "supervised sensitive investigations of foreign government officials and militia for war crimes, crimes against humanity, and genocide."
Before his two years away from the DOJ, he worked in the U.S. Attorney’s Office for the Eastern District of New York in a variety of roles, prosecuting crimes ranging from public corruption, violent crime, and gangs to white-collar and complex financial fraud.
After leaving the Department of Justice, he returned to international law. He served a four-year term as a specialist prosecutor with the Kosovo Specialist Chambers. The specialist prosecutor is tasked with crimes against humanity, war crimes, and other crimes under Kosovo law.
Why was he named special counsel
The Department of Justice has a long-standing policy of resisting political influence on investigations involving major political figures. For instance, the Department of Justice appointed Robert Mueller to investigate Trump’s campaign’s contacts with Russia and to what extent did Russian influence have on the 2016 election.
“The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution,” Garland said. “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.
"Such an appointment underscores the department's commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”
Garland also hired a special counsel late last year, Robert Hur, to investigate President Joe Biden’s handling of classified documents after he left the vice presidency in 2017.
“I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice,” Smith said in a statement in November. “The pace of the investigations will not pause or flag under my watch. I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
Mueller stated in his 2019 testimony to Congress that a sitting president could not be charged with a crime due to a long-standing Office of Legal Counsel guidance. But when asked by Rep. Ken Buck, R-Colo., if a former president could be indicted, Mueller simply responded, “Yes.”
The Department of Justice frequently issues memos in the months leading up to an election reminding staff not to let investigations interfere with elections.
"The Department of Justice has a strong interest in the prosecution of election fraud and other election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process," wrote Attorney General Michael B. Mukasey in 2008. "As Department employees, however, we must be particularly sensitive to safeguarding the Department's reputation for fairness, neutrality, and nonpartisanship."
Other attorneys general have issued similar memos.
The guidance stops short of saying that an active candidate cannot be indicted and/or arrested on federal charges.
What was Smith tasked with
The Department of Justice had multiple ongoing investigations involving Trump at the time he announced his candidacy.
The investigation into Trump’s alleged mishandling of classified documents was well underway when Smith was appointed. Federal authorities issued a search warrant on Trump’s Mar-a-Lago residence in August 2022 to obtain the remaining documents.
The search warrant came months after the DOJ subpoenaed Trump, asking for him to return missing documents. The DOJ later said that while Trump did hand over some documents, they were incomplete.
Smith was also tasked with investigating efforts to interfere with the transfer of power following the 2020 presidential election and the certification of the Electoral College on Jan. 6, 2021. The DOJ specified, however, that Smith’s investigation would not include prosecuting those who may have illegally entered the Capitol on Jan. 6, 2021.
“As special counsel, he will exercise independent prosecutorial judgment to decide whether charges should be brought,” Garland said in November. Although the special counsel will not be subject to the day-to-day supervision of any official of the department, he must comply with the regulations, procedures, and policies of the department.”
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