[The obvious comparison to Smith’s appointment is the last
special counsel who investigated Trump: Robert Mueller. But this
appointment appears different in some important ways.]
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WHY SPECIAL COUNSEL JACK SMITH MIGHT BE DIFFERENT FROM ROBERT MUELLER
 
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Andrew Prokop
November 18, 2022
Vox
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_ The obvious comparison to Smith’s appointment is the last special
counsel who investigated Trump: Robert Mueller. But this appointment
appears different in some important ways. _

Special Counsel Jack Smith has been tapped by Attorney General
Merrick Garland to oversee the investigation into former Presidents
Trump’s handling of classified documents after leaving the White
House, photo: Justice Department

 

Attorney General Merrick Garland has appointed Jack Smith as special
counsel in charge of two Justice Department investigations involving
former President Donald Trump, he said in a statement Friday. You can
read the appointment order here
[[link removed]].

The announcement is a significant development that underscores the
seriousness of the probes into Trump — one into his attempt to
overturn Joe Biden’s 2020 election win, the other into his handling
of classified documents
[[link removed]].

It’s unclear whether the move will change much about those
investigations, which were already proceeding pretty vigorously. That
is: it’s not about appointing some new tough prosecutor to take on
Trump. It’s more an attempt to assuage fears that the Justice
Department’s decision-making will be driven by politics.

In the announcement, Garland referenced Trump launching his
presidential campaign
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this week as well as Biden’s own comments that he will likely run
for reelection as factors influencing his decision to appoint a
special counsel.

Smith is a career prosecutor who headed the Justice Department’s
public integrity section before stepping down from the DOJ in 2017
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After his departure, he was appointed
[[link removed]] chief
prosecutor for a European Union body investigating war crimes in
Kosovo and worked out of the Hague. He is still overseas and did not
appear at Garland’s announcement.

A special counsel operates outside the ordinary Justice Department
chain of command and is, in theory, more insulated from pressure to do
the bidding of DOJ bosses. Additionally, per regulations
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can only be fired for “good cause.”

However, the special counsel is not a truly independent operator. The
attorney general can still overrule
[[link removed]] any of his decisions
— though the AG would have to notify Congress that he had done this.
This means, effectively, that any decisions about potential
indictments of Trump or others would still be reviewed by Garland.

In practice, though, Smith’s recommendations will likely carry great
weight, and much could hinge on his judgment. For instance, if he
recommends against charging Trump, it seems highly unlikely that
department higher-ups would overrule him. And if he does recommend
charges, Garland may be hesitant to overrule him there, too.

What Jack Smith will — and won’t — be investigating

Smith is being given charge of two important investigations.

The first investigation, Garland said, is “the investigation into
whether any person or entity unlawfully interfered with the transfer
of power following the 2020 presidential election, or with the
certification of the Electoral College vote held on or about January
6, 2021.”

Translation: This is about whether Trump or people close to him broke
laws in their effort to overturn Biden’s election win.

Smith is not taking over the investigations into the rioters who
actually broke into the Capitol on January 6. Those investigations,
which have led to hundreds of prosecutions already
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overseen by the US Attorney’s Office for the District of Columbia.
(The House January 6 committee’s investigation
[[link removed]] is
a separate matter; they cannot charge anyone criminally and are
focused on writing a report on their findings before Republicans take
over the chamber in January.)

The second probe assigned to Smith is “the ongoing investigation
involving classified documents and other presidential records, as well
as the possible obstruction of that investigation,” Garland said.

This is the probe into whether Trump improperly brought classified
documents to his Florida club, Mar-a-Lago, or elsewhere, but note the
reference to possible obstruction too. Bloomberg’s Chris
Strohm reported in October
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some DOJ prosecutors believe there is sufficient evidence to charge
Trump with obstruction, apparently due to his lack of candor on
whether he had returned all the documents in his possession.

Don’t expect Jack Smith to be Robert Mueller

The obvious comparison to Smith’s appointment is the last special
counsel who investigated Trump: Robert Mueller. But this appointment
appears different in some important ways.

For one, Mueller was appointed special counsel
[[link removed]] to
take over an investigation that threatened the sitting president —
his appointment was meant to send the message that Trump’s Russia
ties would indeed be vigorously investigated even though the Justice
Department was led by Trump’s appointees.

Here, the rationale is basically the opposite. Smith’s appointment
is geared at quieting concerns that any ultimate decisions about
whether to indict Trump might be driven by politics rather than the
law. (Good luck with that.)

Mueller also built his own team to greatly expand the FBI’s
preexisting investigation into Trump’s ties to Russia, and worked at
it for nearly two years. It’s not clear whether Smith will overhaul
things so much — or take so long.

The investigations into Trump’s election interference and the
classified documents have been proceeding at the DOJ for some time and
appear to be fairly well advanced. Smith could just take over the
existing probes and have their attorneys and agents detailed to work
with him.

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

_Andrew Prokop (email, RSS
[[link removed]]) is a senior POLITICS
[[link removed]] correspondent at Vox, covering the
White House, elections, and political scandals and investigations._

In his coverage of threats to US DEMOCRACY
[[link removed]], POLITICIZATION
OF THE JUSTICE DEPARTMENT
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the oddness of our ELECTORAL
[[link removed]] SYSTEM
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the BIDEN POLICY AGENDA
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and much more, he’s interested in digging deep into the mechanics of
how and why US politics works (or doesn’t), surfacing SUBMERGED
DEBATES
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and exploring KNOTTY COMPLEXITIES
[[link removed]].

During the Trump administration, he was Vox’s lead writer covering
the MUELLER INVESTIGATION
[[link removed]], IMPEACHMENT
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and Trump’s ATTEMPT TO OVERTURN THE 2020 ELECTION RESULT
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and he tried to look past the spin to give readers an accurate sense
of what was happening in chaotic unfolding situations. He has profiled
politicians such as JOE MANCHIN
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MCCONNELL
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and BERNIE SANDERS
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focusing not on personality but on their institutional and practical
impact.

He’s worked at Vox since the site’s launch in 2014, and before
that, he worked as a research assistant at the New Yorker’s
Washington, DC, bureau.

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* Merrick Garland
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* Jack Smith
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* Robert Mueller
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* Donald Trump
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