The legal jeopardy former President Donald Trump faces in two federal criminal investigations took on a new tenor Friday with the appointment of a special counsel at the Justice Department.
Jack Smith, a DOJ alum known for his work in international war crimes prosecutions, will take over the investigation into sensitive government documents taken to Trump’s Florida home at the end of his presidency.
Smith will also oversee aspects of the probe reviewing efforts to obstruct the transfer of presidential power after 2020, including bids to interfere with Congress’ certification of the vote.
Here’s what to know about the announcement and the investigations:
The attorney general unveiled the appointment of a special counsel for the investigations, which both have touched on Trump, who announced this week that he’s running for the White House in 2024.
Smith will ultimately report to Attorney General Merrick Garland. But as a special counsel he will be operating outside of the day-to-day supervision 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 – who have been appointed by President Joe Biden – and what is 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 in particularly sensitive matters,” Garland said. “It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”
The appointment has the practical effect of limiting information about the investigation that must be disclosed to Congress, as only details about its budget must be shared with lawmakers.
The special counsel regulations do allow for Garland to fire Smith. But any decision Garland makes to reject a request from the special counsel, including charging decisions, must also be reported to Congress.
Garland pointed specifically to the announcement by Trump earlier this week that he will seek the Republican nomination in 2024, as well as the indications that Biden has given that he also intends to run for reelection.
Department officials had been discussing appointing a special counsel in the probes implicating the former president, CNN was first to report earlier this month, as a way to shield the probes from accusations that they were being driven by politics.
Garland defended the work of DOJ officials who had been working on those investigation and said Friday that they had conducted “their work in the best traditions of the Department of Justice.” But, he said, the DOJ “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.”
The ability of an attorney general to bring in someone from outside of the federal government to lead a politically sensitive investigation is established in US law.
The appointment order is the clearest sign yet that the scrutiny in the two investigations has turned to conduct linked to Trump. That isn’t to say Trump will be indicted, or that even his close aides will face charges. But it does mean there will be more opacity around that investigation and the Mar-a-Lago probe. And those investigations will be operating on a much longer leash.
So far, the prosecutions in the January 6, 2021, probe have focused on the US Capitol riot itself. But behind the scenes, there have been indications that federal investigators were looking more broadly at the other schemes to interfere with the transfer of power – including schemes involving those the former president’s inner circle.
The newly appointed special counsel has worked in law enforcement positions across America and on the world stage, with a career that Garland said showed his reputation as “an impartial and determined prosecutor.”
Smith’s most recent role was as the chief prosecutor investigating war crimes in Kosovo for a special court of The Hague.
His prior work for the Justice Department includes work as a prosecutor in Brooklyn’s US Attorney’s Office, as well as his time as the chief of the Public Integrity Section, which investigates election crimes and public corruption. He also worked as top prosecutor in the US Attorney’s Office of the Middle District of Tennessee, where he was elevated to acting US attorney in early 2017. He served in that role for several months under the Trump administration.
Smith will have at his disposal all of the investigatory tools that a US attorney can use, including subpoena power. He will be given his own budget and can build out a staff to support his work. If he chooses to bring any indictments, his team could also lead those prosecutions in court. His investigatory work must comply with all Justice Department regulations, procedures and policies.
Garland said that he “will ensure that the special counsel receives the resources to conduct this work quickly and completely.”
Special counsel Robert Mueller’s two-year investigation into Trump-Russia ties ultimately cost nearly $32 million, however that total includes what Mueller borrowed from other parts of the Justice Department that weren’t under his direct control.
Trump said Friday he “won’t partake” in the investigation.
“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?” Trump told Fox News Digital. “It is not acceptable. It is so unfair. It is so political.”
He continued, “I am not going to partake in it… I announce and then they appoint a special prosecutor.”
Garland is appointing Smith to oversee parts of the January 6 probe, but the scope of those parts is wide.
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 following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.”
The prosecutions involving those that physically breached the Capitol that day will stay under the purview of the US Attorney’s Office in DC, Garland said.
The Mueller investigation culminated in the 400-page report that was ultimately released to the public with some redactions. However, there is no obligation for a special counsel to produce a publicly releasable and comprehensive report. The regulations only require that that the special counsel provide the attorney general a “confidential report explaining the prosecution or declination decisions reached by the special counsel.”
Garland on Friday did not respond to a reporter’s question asking about the possibility that a report would be released.
There is no set deadline for the special counsel to conclude his investigation. If anything, as a special counsel, Smith could be more insulated from political pressure to wrap up the probe. Critics of the current rules for special counsel complain that the regime allows for probes to drag on as they balloon in scope.
Smith, in a statement released by the Justice Department with his announcement, emphasized that he would not let his appointment slow down the speed of the investigations: “The pace of the investigations will not pause or flag under my watch. I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”