What’s happening with the Trump special counsel investigation?
Jack Smith, a veteran Justice Department prosecutor, is tasked with overseeing criminal investigations into former President Trump’s handling of classified documents after he left the White House, and a separate probe into attempts to stop President Biden from assuming office after the 2020 election.
Atty. Gen. Merrick Garland said he appointed a special counsel because Trump and Biden have both indicated they intend to seek another term as president. Garland appointed Smith on Nov. 18. In January, Garland named a separate special counsel to investigate classified records found at Biden’s home and office.
Here’s what we know.
Who is Jack Smith?
Smith is a veteran prosecutor known for pursuing complicated cases that come with a significant amount of political pressure. For five years he oversaw the Justice Department’s public integrity section, which investigates wrongdoing by politicians and election crime, and spent nearly a decade working as a federal prosecutor in Brooklyn after working in Manhattan.
Prior to his appointment by Garland, Smith spent three years as a special prosecutor examining war crime accusations in Kosovo for the International Criminal Court at The Hague.
What is Smith doing?
Garland tasked Smith in November with overseeing two existing investigations involving Trump and his allies.
The first is a probe of what led to the Jan. 6, 2021, attack on the U.S. Capitol and attempts to block the peaceful transfer of power after the 2020 election. Smith’s work does not include investigating rioters who entered Capitol ground, caused damage or inflicted injuries on police and reporters.
The second involves hundreds of classified documents that reportedly went home with Trump after he left the White House. The FBI used a search warrant to recover the documents from Trump’s Florida home in August after obtaining evidence showing the former president had not complied with a subpoena ordering him to turn them over.
Garland and Smith both stressed that they didn’t want the appointment of a special counsel to the ongoing cases to slow either of them down.
A grand jury convened for the Jan. 6-related case has heard from more than a dozen witnesses. And the Justice Department has issued dozens of subpoenas for witnesses and information, and seized multiple cellphones belonging to former Trump officials, allies and campaign staff.
What does a special counsel do?
Department of Justice rules allow the attorney general to appoint a person from outside the federal government to conduct investigations or prosecutions that may present a conflict of interest or are politically sensitive. Special counsels are largely used to determine if elected officials or political candidates violated the law. Special counsels are not subject to day-to-day supervision by the Justice Department and are vested with the “full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.”
The most well-known special counsel investigation looked at the 1972 break-in of the Democratic National Committee headquarters at the Watergate complex and the ensuing cover up. Then-President Nixon ordered the firing of special counsel Archibald Cox in 1973, leading to public outcry and the appointment of a new special counsel to complete the investigation.
Congress passed the Ethics in Government Act of 1978, which outlines when a special prosecutor or independent counsel can be named or removed.
Other prominent investigations led by special counsels looked at weapons sales in the Iran-Contra affair during the Reagan Administration and the real estate and land deals of the Whitewater controversy during the Clinton administration. Every presidential administration since Nixon’s has been the subject of a special investigation, except for that of President Obama.
Since part of the Ethics in Government Act expired in 1999, Justice Department rules have governed special counsels.
Will there be a written report when Smith is done?
Perhaps, but the public won’t necessarily see it. Special counsels often produce a written report of their investigatory steps and indicate whether charges are warranted as Robert S. Mueller III did for his investigation of Russian interference in the 2020 election and what the Trump campaign knew about it.
A report is more likely if Smith decides against recommending charges and feels a need to explain why. It is up to Justice Department leaders to determine how much of that report would become public.
If Smith recommends charges, his explanation for doing so would be presented in court.
What charges are possible?
We don’t know what charges that the special counsel might be considering, but there are some clues.
The documents case is fairly straight forward. The special counsel is looking at whether Trump illegally kept classified materials at his Mar-a-Lago estate in Palm Beach, Fla., and if he and his staff obstructed repeated efforts to retrieve them.
The warrant approved by a judge authorizing the search of Trump’s home indicated that the government was investigating violations of the Espionage Act, which outlaws the unauthorized retention of national security information that could harm the United States or aid a foreign adversary; a federal law that makes it a crime to destroy or conceal a document in order to obstruct a government investigation; and another statute associated with unlawful removal of government materials.
The Jan. 6-related case is much more complex, reaching into how Trump spent money purportedly raised to help pay for legal challenges to the election; efforts to have unofficial slates of state electors file fraudulent official certificates with Congress and the National Archives; and who organized and funded the rallies that brought people to Washington on Jan. 6, 2021.
Smith appears particularly focused on the fake electors scheme, which hinged in part on hopes by Trump supporters that former Vice President Mike Pence would either throw out the votes of certain states where multiple slates of electors had been submitted or delay certification of the election until legislators in those states convened to examine fraud allegations. In a sign of potential escalation, several news outlets reported that Smith subpoenaed Pence for testimony this week.
One possible charge is obstruction of an official proceeding, which the Justice Department mentioned in a June warrant to seize the cellphone of former Justice Department official Jeffrey Clark.
Is there a timeline for completing the special counsel’s work?
There was speculation in the fall when Smith was appointed that the special counsel would have to rush his work so as not to give the appearance of interfering with the 2024 presidential election. But Garland set no restrictions in his order creating the special counsel and Smith is known for pursuing an investigation to its conclusion regardless of politics.
Decisions on whether to pursue charges against Trump or others, particularly in the documents case, could come as soon as this summer.
What role do the House Jan. 6 committee’s criminal referrals play?
None, more than likely.
Before it dissolved, the committee unanimously recommended that the Justice Department criminally prosecute Trump for insurrection, obstruction of an official proceeding of Congress, knowingly and willfully making materially false statements to the federal government and conspiracy to defraud the United States.
The committee also referred California attorney John Eastman for criminal charges, including obstruction, and suggested criminal charges would be warranted against several others.
The department has no obligation to adopt the committee’s conclusions or to follow the committee’s recommendations.
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