The legal jeopardy facing former President Donald Trump in two federal criminal investigations took on a new dimension Friday with the appointment of a special counsel at the Justice Department.
Jack Smith, a Justice Department alum known for his work in international war crimes prosecutions, will lead the investigation into sensitive government documents moved to Trump’s Florida home at the end of his presidency.
Smith will also oversee aspects of the investigation to review efforts to block the transfer of presidential power after 2020, including bids to interfere with congressional vote certification.
Here’s what you need to know about the announcement and surveys:
The attorney general revealed the appointment of a special counsel for the investigations, which involved Trump, who announced this week that he would run for the White House in 2024.
Merrick Garland announces special counsel to oversee Trump investigations
Smith will eventually report to Attorney General Merrick Garland. But as a special adviser he will operate outside the day-to-day oversight of the department’s political leadership, and his interactions with Biden’s political appointees should be limited.
The independent special counsel puts some distance between the Department’s political leadership — appointed by President Joe Biden — and what’s happening in the Trump-related investigations. Smith is registered as an independent, a DOJ official told reporters.
“Such an appointment underscores the Department’s commitment to both independence and accountability on highly sensitive matters,” Garland said. “It also allows prosecutors and agents to get on with their work quickly and make decisions unequivocally based only on the facts and the law.”
The designation has the practical effect of limiting the information about the investigation that must be disclosed to Congress, as only details about its budget must be shared with lawmakers.
Special counsel regulations allow Garland to fire Smith. But any decision Garland makes to deny a request from the special counsel, including charging decisions, must also be reported to Congress.
Garland specifically pointed to Trump’s announcement earlier this week that he would seek the Republican nomination in 2024, as well as indications that Biden has given that he also intends to run for re-election.
Department officials were discussing appointing a special counsel to the probes involving the former president, CNN first reported earlier this month, as a way to protect the probes from accusations that they were politically driven.
Garland defended the work of Justice Department officials working on that investigation and said Friday that they had conducted their work “in the best traditions of the Department of Justice.” But, he said, the Justice Department “has long recognized that in some extraordinary circumstances, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.”
An attorney general’s ability to bring in someone from outside the federal government to lead a politically sensitive investigation is established in US law.
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The appointment order is the clearest sign yet that scrutiny of the two probes has turned to Trump-related conduct. That doesn’t mean Trump will be indicted, or that even his close aides will face charges. But that means there will be more opacity surrounding this and the Mar-a-Lago investigation. And these investigations will run on a much larger leash.
So far, prosecutions in the January 6, 2021 investigation have focused on the US Capitol riot itself. But behind the scenes, there were signs that federal investigators were looking more broadly at other plans to interfere with the transfer of power — including plans involving those in the former president’s inner circle.
The newly appointed special counsel has worked in law enforcement positions across America and on the world stage, a career that Garland said demonstrated his reputation as an “impartial and determined prosecutor.”
Smith’s most recent role was as the attorney general investigating war crimes in Kosovo for a special tribunal in The Hague.
His previous work for the Department of Justice includes work as a prosecutor in the US Attorney’s Office in Brooklyn, as well as his time as head of the Public Integrity Division, which investigates election crimes and public corruption. He also worked as a senior prosecutor in the U.S. Attorney’s Office for the Middle District of Tennessee, where he took over as prosecutor in early 2017. He served in that role for several months under the Trump administration.
Smith will have all the investigative tools a US attorney can use, including subpoena power. He will be given his own budget and will be able to establish a staff to support his work. If he chooses to press charges, his team could also take those prosecutions to court. His investigative work must comply with all Department of Justice regulations, procedures, and policies.
Garland said he will “ensure that the special counsel receives the resources to conduct this work expeditiously and fully.”
Special counsel Robert Mueller’s two-year investigation into Trump-Russia ties ultimately cost nearly $32 million, but that total includes what Mueller borrowed from other Justice Department departments not under his direct control.
Trump said Friday that he “will not participate” in the investigation.
“I’ve been found not guilty for six years of everything — from trumped-up impeachments to Mueller not finding collusion, and now I have to do more?” Trump said on Fox News Digital. “It is not acceptable. It is so unfair. It’s so political.”
He continued, “I’m not going to be a part of it … I’m announcing and then they’re appointing a special prosecutor.”
Garland appoints Smith to oversee parts of the January 6 investigation, but the scope of those parts is broad.
The appointment describes his authority to investigate “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power after the 2020 presidential election or the certification of the Electoral College vote conducted on or about January 6, 2021. ”
Prosecutions involving those who physically violated the Capitol that day will remain under the jurisdiction of the U.S. Attorney in D.C., Garland said.
The Mueller investigation culminated in the 400-page report that was eventually released with some redactions. However, there is no obligation for a special consultant to prepare a public and comprehensive report. The regulations require only that the special prosecutor must provide the attorney general with a “confidential report explaining prosecution or dismissal decisions made by the special prosecutor.”
Garland on Friday did not respond to a reporter’s question about the possibility of a report being released.
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There is no set deadline for the special prosecutor to complete his investigation. If anything, as special counsel, Smith could be more insulated from political pressure to complete the investigation. Critics of the current rules for special prosecutors complain that the regime allows probes to creep as they expand their scope.
Smith, in a statement released by the Justice Department with his announcement, emphasized that he will not let his appointment slow the pace of the investigations: “The pace of the investigations will not stop or slow down under my watch. I will exercise independent judgment and move investigations forward expeditiously and thoroughly in whatever outcome the facts and law dictate.”
