November 18

By Claire Hansen

Attorney General Merrick Garland on Friday appointed a special counsel to take over two criminal probes involving former President Donald Trump, including the Justice Department’s investigation into Trump’s handling of classified documents and national secrets found at his Mar-a-Lago residence as well as some aspects of a probe into the role of Trump and others in the insurrection at the U.S. Capitol.

Garland chose as special counsel Jack Smith, a career Justice Department prosecutor who has also served as the chief of the Justice Department’s Public Integrity Section. Smith has investigated and prosecuted war crimes with the International Criminal Court and was most recently the chief prosecutor for the special court in The Hague. Garland said Smith will return from The Hague to begin his work as special counsel immediately.

Smith’s appointment comes just days after Trump on Tuesday announced a bid for the White House in 2024 – an early announcement that some speculated was in part an attempt to curtail the ongoing investigations or at the very least paint them as inherently political.

The appointment of a special counsel, which operates semi-independently and without the traditional day-to-day oversight of the Justice Department, ensures the continuation of the probes and is an attempt to insulate the investigation of the appearance of political bias. The decision speaks to the sensitivity with which the probes will need to be handled now that Trump has declared his candidacy in the upcoming presidential election.

Garland said that Trump’s 2024 announcement, as well as Biden’s indications that he may also run for re-election, informed his decision.

“The Department of Justice 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,” Garland said Friday.

“Based on recent developments, including the former president’s announcement that he is a candidate for president in the next election, and the sitting president’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel. Such an appointment underscores the department’s commitment to both independence and accountability in particularly sensitive matters,” he said.

Smith will work largely independently but report directly to Garland, who will have the ultimate say over any possible indictments.

In a statement released soon after Garland’s announcement, Smith said he would conduct the investigations “independently and in the best traditions of the Department of Justice.”

“The pace of the investigations will not pause or flag under my watch. I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate,” Smith said.

The Justice Department is investigating Trump’s handling of classified documents after he left office, as well as efforts to obstruct that investigation.

In August, FBI agents took more than 13,000 documents from Trump’s residence at the Florida club, of which 103 were classified and 18 were labeled top secret, according to court filings. Some of those documents reportedly included deeply sensitive intelligence on China and information on Iran’s missile program.

The National Archives and Records Administration had previously noticed the cache of missing documents and asked Trump to return them. Two previous caches of documents returned from Trump’s possession earlier this year contained more than 220 classified documents in total.

Trump has fought the investigation in court, in one case winning the appointment of a special master to intervene in the documents, though that appointment appeared to backfire for Trump’s legal team. He has previously floated the theory that federal agents planted some of the documents themselves at Mar-a-Lago and has been called out by a federal judge who asked him to document the sensational claim. The requirement was later lifted.

The former president has denied any wrongdoing with regard to the documents. His lawyers have argued in court that the documents were protected by executive privilege and, if not, were declassified by Trump. Trump has claimed that the president has unilateral authority to declassify documents even by “thinking” it, and that he did so with those that were in his possession – statements experts say are at odds with the law. Trump’s lawyers have also not provided evidence that he formally declassified any of the documents.

The Justice Department is also investigating the events leading up to the Jan. 6, 2021, insurrection, which was catalyzed by election fraud lies promoted by Trump and his allies, and which Democrats say was aimed at stopping the certification of the Electoral College vote.

That has happened in tandem with a House committee probe into the event. That committee over the course of a number of hearings this year painstakingly presented evidence that Trump instigated the insurrection and then failed to take action to stop it in a timely manner.

Garland detailed Friday that the special counsel’s probe would not include investigations into members of the public who were physically present at the insurrection and inside the Capitol that day.