WASHINGTON — Attorney General Merrick Garland on Friday appointed a special counsel to take over two major criminal investigations involving former President Donald Trump, examining his role in events leading up to the Jan. 6, 2021, 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, Garland is seeking to insulate the department from claims that the investigations into Trump are motivated by politics.
Garland said the political intentions of Trump and President Joe Biden prompted him to take what he described as an extraordinary step. Trump announced Tuesday that he would pursue a third bid for the presidency in 2024, and 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 Garland, who retains final say over whether Trump is charged with a crime after Smith presents recommendations.
Garland and Smith emphasized that the move would not slow the pace of either investigation, particularly the documents inquiry, which is advancing faster than the Jan. 6 case. In a statement, Smith vowed that the investigations would move quickly “to whatever outcome the facts and the law dictate.”
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,” 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 Smith concludes that there is sufficient evidence to indict Trump, for instance, Garland would still have to sign off.
Even before 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 Trump’s 2020 campaign and from Save America, a political action committee that his aides formed shortly after Election Day two years ago as Trump tried to overturn the results, according to two people briefed on the matter.
A now-dormant super PAC created by Trump called Make America Great Again and a joint fundraising committee also received subpoenas, indicating the Justice Department is trying to establish whether Trump’s aides knew he had lost but continued to raise money to fight the outcome.
Separately, a handful of Trump’s aides were alerted to subpoenas in connection with the documents case, according to three people briefed on the matter.
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 Smith was registered as a political independent, and Garland made a point of expressing gratitude to federal prosecutors and FBI agents already working on the investigations, some of whom have been targeted by Trump supporters.
Smith has served as the chief prosecutor at a special court in The Hague, Netherlands, 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, 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 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 Garland cast his decision as an effort to ensure public faith in the impartiality in the department’s investigations of Trump, it remains unclear if Smith’s appointment will influence public perception in a meaningful way.
Trump and his supporters already claim that Biden has weaponized the department to target his chief political enemy. A day before 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 Trump’s indictment and conviction.
Still, if he abides by Smith’s recommendations, 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 Smith, signed Friday by Garland, named 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 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 Trump’s assembled slates of purported electors pledged to Trump in swing states won by Biden.
The documents investigation began more quietly, with escalating requests from officials at the National Archives, who requested hundreds of records Trump shipped from the White House to Mar-a-Lago, his private resort and residence in Florida. 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 Trump’s legal team said all such material had been returned.
The documents case has increasingly centered on the actions of 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 that a special counsel wants to take.
Department officials, speaking on the condition of anonymity, said Smith was among the first people considered when 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.
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 2010-15.
No assignment is comparable to investigating a former president and active presidential candidate. But 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 Trump.
Smith also helped direct the prosecution of Jeffrey Sterling, a former CIA 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 Smith to the job. “He is straight down the middle.”
Smith then worked for several years as the No. 2 federal prosecutor in Nashville, Tennessee, before returning to Europe to work on war crimes cases.
For 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 Mueller, who scrutinized various links between his 2016 campaign and Russia.
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 Garland if he pursues charges against the former president. That tension will only become more pronounced now that 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.”
This article originally appeared in The New York Times.