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Why special counsel Jack Smith might be different from Robert Mueller

He’s overseeing Trump investigations, but his appointment comes in a very different context.

US Attorney General Merrick stands in front of a podium with the Department of Justice emblem.
Attorney General Merrick Garland delivers remarks at the Justice Department on November 18, 2022, in Washington, DC.
Anna Moneymaker/Getty Images

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.

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.

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 earlier 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. After his departure, he was appointed 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, the special counsel can only be fired for “good cause.”

However, the special counsel is not a truly independent operator. The attorney general can still overrule 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, will still be overseen by the US Attorney’s Office for the District of Columbia. (The House January 6 committee’s investigation 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 that 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 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. “I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”