The scope of the special counsel includes the pending cases of the Department of Justice investigating Trump’s alleged custody of highly sensitive national security secrets at his Mar-a-Lago estate, as well as aspects of efforts by Trump and his allies to undermine the 2020 election and disrupt the transition of power to President Joe Biden.
Garland expressed an urgency behind both investigations, stressing that Smith’s appointment would not delay them.
“I will make sure that special counsel is given the resources to do this work quickly and completely,” Garland said at a brief press conference at DOJ headquarters. “Given the work done to date and Mr. Smith’s experience as a prosecutor, I am confident that this appointment will not delay the completion of these investigations.”
Garland’s announcement came just hours after he signed a formal warrant recruiting Smith for the post. A graduate of Harvard Law School in 1994, Smith led the department’s public integrity section for five years during the Obama administration before taking a position at the United States law firm in the Middle District of Tennessee.
During his time with the Public Integrity Section, Smith oversaw the prosecution of CIA officer Jeffrey Sterling, who was convicted in 2015 of disclosing national defense information and obstructing justice – two alleged crimes at the center of the investigation of Trump documents. Smith also oversaw the convictions of former Virginia Gov. Bob McDonnell and former Rep. Rick Renzi, a Republican from Arizona, both on bribery and racketeering charges. McDonnell’s conviction was later overturned by the Supreme Court.
Since 2018, Smith has been prosecuting war crimes arising from the conflict in Kosovo in The Hague. He is registered to vote in the US as a political independent, officials said.
The announcement also came amid a flurry of notable activity at the federal courthouse in Washington, where three new grand juries were assembled Friday, likely in connection with the start of Smith’s investigation.
Under Justice Department procedures, special counsel are required to notify senior Department officials of important investigative steps, such as indictments. Garland retains the ability to dismiss such charges under regulations, but any attempt to revoke the independent prosecution must be reported to Congress and would almost certainly set off a political firestorm.
According to Garland’s order, Smith will take over the full investigation into the presence of numerous White House documents and documents with secret markings at Trump’s Mar-a-Lago estate in Florida after he left office in January 2021. Smith will also take over the ongoing investigation into “attempts to disrupt the lawful transition of power following the 2020 presidential election or the certification of the Electoral College vote on or about Jan. 6, 2021,” as well as related matters.
However, the U.S. Attorney’s Office in Washington, D.C., will retain control of investigations and prosecutions of people “physically present on Capitol grounds” on Jan. 6, 2021, according to Garland’s order. About 900 people in or near the Capitol were charged criminally that day with offenses ranging from trespassing to seditious conspiracy against the U.S. government.
No one has yet been charged in the wider January 6 investigations of election interference.
Centralizing the Trump-focused investigations under special counsel is a move designed to build confidence in the independence of any prosecution decision in the explosive investigations. In 2017, then-Deputy Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller to oversee the investigation into Trump’s 2016 campaign links with Russia. In 2020, Attorney General William Barr appointed then-U.S. Attorney John Durham as special counsel to investigate the origins of the FBI’s Russia investigation.