The Justice Department hopes to avoid pitfalls of the last special counsel investigation targeting Trump.
As new Justice Department Special Counsel Jack Smith takes over a series of criminal investigations into former President Donald Trump, he has one clear advantage: recent history.
In many ways, Smith is stepping into the shoes filled by former FBI Director Robert Mueller, named in May 2017 to examine allegations of ties between Trump’s 2016 presidential campaign and Russia.
Smith lacks the public profile of Mueller, who before taking the special counsel post had served as FBI director, U.S. attorney in San Francisco and the head of Justice’s criminal division.
But Smith has almost three decades of prosecutorial experience, as a lawyer for state and federal governments as well as two tours as an international war crimes prosecutor at the Hague.
Mueller’s lengthier record of government service proved to be a double-edged sword. He was 73 at the time of his special counsel appointment and 75 when his report was delivered.
Smith, 53, seems unlikely to face the kinds of criticism Mueller did about his best years being behind him and allegedly allowing his deputies to play outsized roles in decision-making. And his low profile may make him a harder target for Trump’s allies to undermine. He also has a long history of bringing corruption cases to trial and conviction, a credential that may have made him an attractive choice for Garland — and an ominous one for Trump.
Here’s POLITICO’s look at the obstacles and opportunities Smith faces as he dives into the volatile world of Trump investigations:
Smith’s greatest asset may be the one Mueller never had: a recent special counsel probe of Trump himself.
Mueller probed a newly inaugurated Trump who had the power of the presidency and Justice Department at his disposal, something Trump won’t have as a former president. In addition, Smith can learn from the obstacles Mueller faced, and the resistance Mueller encountered from a Republican-led Congress rallying around Trump to inform his tactics.
Trump, while in office, launched an all-out public relations assault against Mueller and at times attempted to squeeze him from within the administration. He and his allies slammed Mueller — a registered Republican — and his team as anti-Trump liberals, seizing on the political donations some of his top aides had made to Democrats.
Smith’s staffing choices will be closely scrutinized, and whoever he chooses to do the day-to-day work of the investigation will be prepared for a Trumpian onslaught.
Beyond Attorney General Merrick Garland’s public salutes Friday to the existing prosecution and investigative teams, there were indications that the bulk of the career personnel currently pursuing those issues are expected to remain in place and simply report to Smith.
Mueller’s investigation subsumed investigations being conducted by federal prosecutors in Alexandria, Va., into potential foreign influence on the Trump campaign, including a probe into Trump adviser Michael Flynn over his ties to Turkey. The takeover ruffled some feathers among the prosecutors initially assigned to those investigations, according to officials who asked not to be named.
This time, though, Smith will have the benefit of understanding Mueller’s pitfalls. And Trump is now without the power of the presidency to pressure and shape the probe against him, though he still commands a formidable media megaphone.
Resistance from Capitol Hill
Like Mueller, Smith will be operating with a Republican-led House, which takes over on Jan. 3 after the Democrats were narrowly edged out for control of the chamber. Although leadership elections remain murky, it’s all but certain some of Trump’s top allies will end up with committee gavels that could be used to create substantive obstacles to Smith’s work.
Smith got a preview of what he’ll face from the GOP-led House Friday. Rep. Marjorie Taylor Greene (R-Ga.), who is expected to take a prominent and visible role in the new GOP majority, tweeted shortly after Smith’s appointment: “IMPEACH MERRICK GARLAND!” She also urged Republicans to withhold appropriations from DOJ for the special counsel’s work.
House Republicans have already previewed plans to use the Judiciary Committee to investigate what they claim is “politicization” inside the Justice Department, describing unsupported claims of bias in both the Mar-a-Lago probe and the department’s investigation of the Jan. 6 riot at the Capitol.
Veteran House Republicans, like ranking Judiciary Committee member Jim Jordan, have already developed a template for how to push back against a special counsel probe into Trump. The panel, along with the GOP-led intelligence committee in 2018, used its investigative powers to dog the Mueller investigation at every turn, hauling in Justice Department brass, threatening subpoenas and demanding details of the ongoing probe, including materials like the “scope memo” that outlined the basis and parameters of Mueller’s investigation.
Other Republicans appeared to coalesce behind a different critique of Garland after Friday’s announcement: Where’s the special counsel to investigate Hunter Biden’s foreign dealings?
“This is an admission of a conflict of interest by DOJ,” Sen. John Cornyn of Texas said, “now acknowledge the obvious conflict of interest in Hunter Biden investigation and appoint a special counsel.”
Democrats quickly cheered the appointment and described it as a warranted step to ensure the appearance of fairness in DOJ’s probes.
“I am confident that Special Counsel Smith will pursue justice in these investigations without fear or favor, following the facts and the law wherever they lead,” said Senate Judiciary Committee Chairman Dick Durbin (D-Ill.).
Mueller’s probe also took nearly two years to complete, with some of his first indictments — including Trump’s former campaign chairman Paul Manafort — arriving about five months after he began. In announcing the special counsel appointment Friday, Garland unmistakably emphasized the importance of speed, implicitly aware that the closer the probe gets to GOP primary season, the more sensitive the political environment.
Although there’s no explicit timeline for Smith to complete his work, Garland made clear he envisions an aggressive timeline. Both Garland and Smith vowed that the appointment of a special counsel would not “slow” the already well-developed investigations. And Smith said it was his job to ensure the investigations do not “pause” or “flag” on his watch.
While Garland was flanked by senior Justice Department officials at Friday’s announcement, a mishap prevented Smith from joining the group on stage with the attorney general. A few days ago, Smith — who has been working since 2018 as the chief prosecutor at the Hague tribunal considering war crimes cases from Kosovo — injured his knee in a biking accident, officials said. That made him unable to travel back to Washington for Garland’s press appearance Friday.
However, the Justice Department also stressed in a statement announcing Smith’s appointment that he “will begin his work as special counsel immediately.”
One sign of progress will be indications that new subpoenas have been issued or new search warrants have been executed against witnesses in either probe. Investigators have already taken steps against some of Trump’s top allies, seizing the phone of attorney John Eastman, an architect of his plan to subvert the election on Jan. 6, and subpoenaing dozens of Republican activists who served as alternate “electors” for Trump in states won by Joe Biden.
The department has also delivered limited immunity to Trump aide Kash Patel to compel testimony from him in its ongoing documents probe, which is currently being led by senior counterintelligence officials.
Garland and his top advisers are hoping that Smith’s extensive resume and history of prosecuting officials from both parties will help calm fears that he’s a political partisan intent on taking Trump out or doing the handiwork of Biden appointees.
Mueller’s probe was saddled with perceptions that it was staffed by Democratic partisans because many of the lawyers had donated to Democratic candidates in the past and none had given to Trump. Officials were quick to note that the new special counsel is registered to vote as an independent. For his part, Mueller had taken political appointments from presidents of both major parties before being tapped for the special counsel post by Deputy Attorney General Rod Rosenstein.
The record of Justice’s Public Integrity Section while Smith was in charge is one of great success at prosecuting corruption among state and local officials, but decidedly mixed results in the highest-profile cases against federal officials.
Under Smith’s leadership in the early 2010s, the roughly 30-person prosecution team known as “PIN” won jury convictions of former Rep. Rick Renzi (R-Ariz.) on racketeering, bribery and extortion charges and secured guilty verdicts against a former Central Intelligence Agency officer, Jeffrey Sterling, for sharing classified information with a New York Times reporter, James Risen.
However, Smith’s anti-corruption team fell flat in its effort to prosecute former Sen. John Edwards (D-N.C.) for his alleged role in more than $1 million in money that flowed from his supporters to a woman who had an affair with Edwards while he was a candidate for the 2008 Democratic presidential nomination.
In May 2012, after a five-week trial and nine days of deliberations, a jury in North Carolina returned one not guilty verdict against Edwards and deadlocked on five others. The Justice Department quickly announced that Edwards would not be retried.
And while Smith’s team notched a victory in the 2014 extortion and bribery trial of former Gov. Bob McDonnell (R-Va.), his convictions were overturned two years later by the Supreme Court, which reined in some efforts to pursue public corruption.
Smith also helped shepherd an investigation several years ago into alleged corruption on the part of Sen. Bob Menendez (D-N.J.), although the indictment of Menendez came down about two months after Smith left the DOJ public corruption unit for a federal prosecutor job in Nashville, Tenn. That case went to trial in Newark two years later, resulting in a hung jury. Prosecutors also opted not to retry the case.
Republicans are already seizing on aspects of Smith’s background. They point to Justice Department records showing he was involved in decisions to open investigations into largely Republican-supported non-profit groups who were diving into political causes.
“This seems egregious to me — could we ever charge a [18 U.S.C. §] 371 conspiracy to violate laws of the USA for misuse of such nonprofits to get around existing campaign finance laws + limits?” Smith wrote in a July 2010 email to Justice Department colleagues. “I know 501s are legal but if they are knowingly using them beyond what they are allowed to use them for (and we could prove that factually)?...We should try to set up a meeting this week.”
Republican lawmakers say Smith’s efforts led to an Internal Revenue Service crackdown that subjected conservative nonprofits to intrusive inquiries by tax officials.
“Jack Smith has been a Swamp Creature forever,” the GOP staff of the House Judiciary Committee declared on Twitter Friday, citing Smith’s involvement in the IRS investigations.