(Bloomberg) -- Jack Smith, the new special counsel overseeing two of the Justice Department’s most high-profile and politically sensitive investigations involving former president Donald Trump, is up against a clock.
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Smith’s appointment by Attorney General Merrick Garland indicates there are still big decisions to come -- including whether the evidence supports bringing criminal charges. But the closer it gets to the Republican primaries in early 2024, let alone election day, cries of political interference by Trump and his supporters will only get louder if a federal indictment comes down.
The new special counsel joins the fray months well into the two probes he’ll now manage, exploring any crimes linked to Trump’s efforts to undermine the 2020 election results and his handling of White House records after he left office. Former federal prosecutors -- including those inside the last big special counsel investigation into Trump -- say they expect Smith’s appointment to add speed and efficiency when it’s needed most.
“This signals the teams will be able to focus only on that work and will have the resources to do it and the advocate to make sure they have those resources,” said Brandon Van Grack, who served on former special counsel Robert Mueller’s team investigating Russian interference in the 2016 election and whether Trump tried to obstruct that probe.
Van Grack, now in private practice, said although Smith will need time to set up his office and catch up on the evidence-gathering and pending litigation, appointing a single supervisor ultimately will help move things along. In a typical criminal probe, it’s rare to have prosecutors or senior decision-makers solely dedicated to one or two cases.
Smith “is a super fast, no-nonsense, and let’s-cut-to-the-chase kind of guy,” Andrew Weissmann, another former Mueller prosecutor, tweeted.
From the unprecedented FBI search of Trump’s Mar-a-Lago home to the issuance of subpoenas to Trump allies, both probes have already cleared major investigative steps. Former federal prosecutor Jennifer Rodgers said she believes Smith’s appointment means there are more consequential moves ahead, including that “charges are at least under serious consideration.”
“You wouldn’t appoint a special counsel to wind down an investigation without charges,” she said. “So Garland at least thinks it’s something that is fairly likely.”
‘A Bit of Cover’
Another benefit to the special counsel set-up is that Smith gives Garland “at least a bit of cover,” which is “by design,” Rodgers said. “Smith is from outside, not a political person, and if he wants to charge, Garland can point to that as a non-political decision.”
Former Deputy Attorney General Rod Rosenstein, who appointed Mueller, warned that a special counsel appointment itself can create legal complications.
“I’m concerned about the timing,” Rosenstein said in an interview Sunday on CBS’ Face the Nation. “I think there’s a fair chance that this is going to drag well into the campaign season.”
“One of the downsides of appointing a special counsel is the possibility of litigation over the validity of the appointment of the special counsel,” Rosenstein said. “That has always been upheld by the courts but litigation can impose additional delays.”
Still, Rosenstein said the appointment indicates that Justice Department leaders believe they have “a viable, potential case” to prosecute.
“A case against a former president obviously would be extraordinary,” he said. “I would hope that Merrick Garland and his team would be very careful about scrutinizing that evidence. Not just checking the box, but making sure that they’re prepared to stand behind the decision they make.”
One of Smith’s first moves has nothing to do with the substance of either probe: Making his way back to the US from the Hague, where he recently had knee surgery following a cycling accident. Other more mundane tasks lie ahead -- setting up his office space, figuring out whether to bring in new staff, and coming up with a workflow for both investigations to report to him.
Unlike Mueller, who came into the Russia investigation in its early stages, Smith is taking the reins of existing teams already deep into the evidence, said Barbara McQuade, a former US attorney in Michigan.
“There’s no need for any member of the team to interrupt anything they’ve been working on,” McQuade said. “If someone has a meeting scheduled for Monday morning at 9 a.m., I imagine that meeting will go forward on Monday morning at 9 a.m.”
Smith’s past experience investigating elected officials -- he led the Justice Department’s Public Integrity Section for five years -- will complement the existing teams already deep into the weeds, Van Grack said. His status as a newcomer also offers “the perception of additional independence” to any forthcoming decisions.
“Do I think it was necessary? No. Do I think there’s a benefit to the investigation? Yes,” Van Grack said.
Smith’s appointment falls under federal regulations that spell out how a special counsel can operate. He won’t be subject to day-to-day oversight by Garland or any other political appointee, but Garland can ask him to explain a particular decision. Garland also has the power to discipline or remove Smith “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”
Garland, meanwhile, must answer to Congress in a few scenarios -- including if he decides to remove Smith, if he declines to accept Smith’s recommendations, and when Smith finishes his work.
Smith can ask for Justice Department employees to be detailed to his office and he can hire staff, but given how far along the Jan. 6 and Mar-a-Lago investigations are, he’s not expected to upend the status quo. When he concludes his work, Smith will submit a confidential report to Garland; Garland can decide to make it public.
“Any final charging decisions remain the province of the Attorney General himself, Merrick Garland, although Smith’s recommendations probably will be given substantial weight,” said former federal prosecutor Kevin O’Brien.
Garland cited Trump’s formal entry into the presidential race and President Joe Biden’s expected candidacy as reasons why an independent special counsel was in the public interest. But that effort to create distance between the Biden administration and the Trump-focused investigations did little to appease the former president and other conservatives, who immediately went on the offensive.
Trump said he was, once again, the subject of a “witch hunt.”
The appointment is another sign of “blatant political bias” in the Justice Department’s effort to tip the scale in favor of Biden and against Trump in 2024, Mike Davis, a Republican political operative and lawyer, said in a statement.
“Like with the politically-motivated and baseless Mueller probe, Garland knows a special counsel will unnecessarily drag on and leave a dark political cloud over Trump while he’s running for president over the next two years,” Davis said.
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