Smith, a war crimes prosecutor at the International Criminal Court at The Hague, injured his leg in a recent bicycle accident and is recovering from surgery. He was tapped Friday to assume control over Justice Department investigations into Trump’s role in efforts to undo the results of the 2020 election, as well the department’s investigation into possible mishandling of national defense secrets at Trump’s Mar-a-Lago residence and private club, where more than 300 classified documents were recovered months after he left the White House.
Attorney General Merrick Garland said it was in the public interest to put a special counsel in charge of the cases, rather than Justice Department officials, to avoid a perceived conflict as Trump launches his 2024 presidential campaign and President Biden — who defeated Trump in 2020 — says he will run as well.
Garland and Smith have both vowed that the appointment of a special counsel will not slow the work in either case, and Smith has already become involved, albeit from the Netherlands. For example, a court filing Monday said Smith has reviewed arguments in a months-long court fight between the Justice Department and Trump’s lawyers over papers seized in the FBI’s Aug. 8 search of Mar-a-Lago.
A panel of federal appeals court judges in Atlanta is set to hear arguments Tuesday over whether a federal judge was right to appoint an outside legal expert known as a special master to review most of those documents.
Justice Department officials declined to answer questions Monday about the mechanics of the special counsel’s start. Nor would they say whether some senior officials who have been intimately involved with investigating Trump will now step back from that work, or temporarily leave their agency roles to work at the special counsel office.
Mary McCord, a former senior national security official at the Justice Department, said in this case she does not expect political appointees to work in the special counsel office, though career prosecutors could continue on the case in that new structure.
The Justice Department may have to make key personnel decisions to decide which career employees will move over to work on the special counsel team. For example, Jay Bratt, who heads the Justice Department’s counterintelligence section, has played a large role in the Mar-a-Lago investigation so far, but is likely working on other major investigations within the department that are not related to Trump.
If Bratt is detailed to the special counsel, he would not remain in his current role, McCord said.
That means the Justice Department must determine whether it makes more sense for Bratt to forgo his other responsibilities and work on the special counsel full-time. McCord said if Bratt remains in his current role, the special counsel could still seek advice from him.
Beyond those types of decisions, she said, she wouldn’t expect the course of the Mar-a-Lago investigation to change much because of Smith’s appointment — primarily because the criminal probe is well underway, with prosecutors and federal agents having secured key evidence.
“The idea is that Smith will be leading the day-to-day of the investigation,” McCord said, noting that federal regulations state that Garland can veto Smith’s charging decisions if he deems them to be “inappropriate and unwarranted.”
Most of Smith’s former colleagues at the Justice Department generally praised him as a dedicated prosecutor who never flinched from tough cases, though one investigator who worked with him on public corruption cases was less complimentary.
“I think he’s very talented, enthusiastic, fearless, and truly dedicated to the prosecutor’s mission,” said Alan Vinegrad, a former federal prosecutor in New York who worked with Smith in the early 2000s. “He will be enthusiastic and throw himself into it.”
In contrast, Jeffrey Cortese, who served as the acting chief of the FBI’s public corruption unit in 2011 when Smith was his Justice Department counterpart supervising the Public Integrity Section, said he did not see Smith as quick-acting or effective in prosecuting public officials.
“At that time, it was understood that the fastest way for a case to die was to give it to PIN,” Cortese said, using the common nickname for the Public Integrity Section. “The frequency with which they declined investigative techniques and prosecutions was often a point of conflict between the FBI and the Justice Department.”
It is not unusual for tensions to flare up between FBI agents and Justice Department officials in corruption investigations, and Smith took over the Public Integrity Section at a fraught time for both agencies.
“When Jack was in charge, assuming a similar series of facts or a similar situation, I’d be surprised that PIN would even allow the case to be opened,” Cortese said. “So it makes me wonder why he’d want anything to do with the case today.”
Dana Boente, a former senior Justice Department official, said that when he heard Friday that there would be a special counsel, he immediately started trying to think about who would be selected, given all the political and practical complexities of the choice. It wasn’t easy.
Boente said the person would need to have both public corruption and national security experience, not be perceived as a partisan — and be willing to take the assignment, which could mean giving up a lucrative private sector job.
“I was rolling through names, and I really came up with nobody,” he said. “I had nobody.”
Boente said Smith, who he knows professionally, did not make his list of possible candidates. But when he heard later in the day that Garland had appointed him, Boente said, he immediately concluded Smith was a good choice who ticked all necessary boxes.
The speed and duration of special counsel investigations has been the subject of intense debate in recent years. The 2017 appointment of Robert S. Mueller III as special counsel ended up lasting two years as he probed possible links between Russian election interference and the Trump campaign, and whether as president, Trump sought to obstruct justice. Mueller’s investigation led to a number of charges, including against people in Trump’s orbit, but no charges against Trump. Mueller also produced a lengthy report of his findings.
Garland inherited a different special counsel probe from his predecessor, one that continues but is expected to wind down in the coming months. Special counsel John Durham, appointed two years ago during the Trump administration to continue probing how intelligence agencies investigated the alleged Russian election interference and the Trump campaign resulted in two acquittals at trial, and a guilty plea by a former FBI lawyer. Durham’s work is also expected to produce a written report.
While a special counsel has more freedom to manage cases and make decisions on their own, that person still works for the Justice Department and ultimately reports to the Attorney General.
Brandon Van Grack, a former federal prosecutor who worked on Mueller’s special counsel, said he suspects Smith will not require as much time as Mueller did to get his operation up and running.
Unlike the Russia probe when the Mueller special counsel was announced, Van Grack said, both the Mar-a-Lago and Jan. 6 investigations appear to already have significant resources and personnel dedicated to them. Mueller assembled a team that included a number of people who did not work at the Justice Department; Van Grack said he doesn’t think Smith will need to hire as many outside people as the Mueller special counsel did.
“Some of the most remarkable people in the Mueller investigation were the people who were able to make the office space and logistics happen in a seemingly seamless fashion,” Van Grack said. “It was an incredibly burdensome process, and it’s unclear if special counsel Smith will or will need to take it on.”
Rosalind S. Helderman contributed to this report.