Attorney General Merrick Garland on Wednesday insisted he “followed” all proper regulations in the Department of Justice’s indictment of former President Donald Trump as he stood behind the “integrity” of special counsel Jack Smith.
Garland handpicked Smith to be special counsel in November, insisting at the time that Smith’s decision would be made “independent” of him despite his role as the head of the Justice Department and chief law enforcement officer.
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Trump was indicted on Thursday, and the charges against him were unsealed Friday. The former president pleaded not guilty in the classified documents case at a federal courthouse in Miami on Tuesday. Garland, who had been silent on the topic despite brief public remarks by Smith last week, was asked about the charges after he gave remarks on violent crime at the Justice Department on Wednesday.
A reporter asked Garland to provide the public with “a very clear sense of what exactly your role was in the indictment process” and asked if he could explain why the historic and unprecedented charging of a former president was the best and most appropriate step.
“My role is completely consistent with the regulations that set forth the responsibilities of the attorney general under the special counsel regulations, and I followed those regulations,” Garland said, adding that “I’m not going to be able to comment” about “particulars” of the case and that “all the comments on this will have to come in filings in court.”
“Throughout his career, Jack Smith has built a reputation as an impartial and determined prosecutor who leads teams with energy and focus to follow the facts wherever they lead,” Garland said when announcing the special counsel pick in November. “As special counsel, he will exercise independent prosecutorial judgment to decide whether charges should be brought."
Smith himself said in a rare public statement in November that he intended to “conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice” and that “I will exercise independent judgment."
The Code of Federal Regulations section on special counsel powers says a special counsel “shall not be subject to the day-to-day supervision of any official” at the Justice Department but that “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
It is clear now, following the historic indictment, that Garland did not object to Smith’s charges and did not block them despite it being within his power to do so. Garland had quickly said he “personally approved the decision to seek a search warrant” for the FBI’s unprecedented raid of Mar-a-Lago back in August.
Garland was also questioned Wednesday about Trump’s criticisms of Smith and about congressional Republicans arguing the DOJ has been weaponized.
“When did you find out that the special counsel was headed down this track, and why did you choose not to stop him, as was in your power?” a reporter pressed.
“I can’t talk about particulars about this or any other ongoing criminal matter,” Garland responded, adding that “any questions about this matter will have to be answered by their filings in court.”
Garland did, however, take the opportunity to defend his special counsel.
“As I said when I appointed Mr. Smith, I did so because it underscores the Justice Department’s commitment to both independence and accountability,” Garland said. “Mr. Smith is a veteran career prosecutor. He has assembled a group of experienced and talented prosecutors and agents who share his commitment to integrity and the rule of law.”
The former president pleaded not guilty on Tuesday to 31 counts for the willful retention of national defense information, one count of conspiracy to obstruct justice, one count of withholding a document or record, one count of corruptly concealing a document or record, one count of concealing a document in a federal investigation, one count for a scheme to conceal, and one count related to alleged false statements.
Trump lashed out at Smith on Friday, calling the special counsel “a Trump Hater — a deranged 'psycho' that shouldn’t be involved in any case having to do with ‘Justice,’ other than to look at Biden as a criminal, which he is!” Trump also called Smith a "Thug" and "Trump Hater” on Tuesday just ahead of his arraignment.
Smith contended Friday that Trump’s alleged violations of the law “put our country at risk.”
Garland’s appointment order for Smith last year said the special counsel “is authorized to conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” Smith was “further authorized to conduct the ongoing investigation” related to the FBI raid of Mar-a-Lago.
President Joe Biden is also being investigated by another Garland-appointed special counsel, Robert Hur. Biden’s personal attorneys said they first discovered classified documents in early November 2022 at the Penn Biden Center, located in the nation’s capital. Biden’s lawyers then found more classified documents at his Wilmington home in Delaware, and the DOJ found more when it conducted its own search.
A decadeslong DOJ veteran prosecutor, Smith had most recently been a prosecutor at The Hague, where he investigated alleged war crimes in Kosovo.
Smith previously served under Obama Attorney General Eric Holder, leading the DOJ's Public Integrity Unit from 2010 to 2015. Smith led a team of 30 prosecutors in conducting public corruption cases throughout the United States, including a mixed track record of going after high-profile politicians.
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Smith also inserted the DOJ into what would become the Lois Lerner IRS scandal targeting conservative nonprofit groups during the Obama years, which Trump has criticized him for since he became special counsel. Smith’s push for DOJ officials to contact Lerner and the IRS in order to get the DOJ involved seemed to be the impetus behind the IRS sending the FBI reams of nonprofit tax records.
Trump-nominated Southern District of Florida Judge Aileen Cannon, who was criticized by the Justice Department last year for implementing a short-lived special master process to oversee the Justice Department's classified documents investigation, has been assigned to oversee the criminal case against Trump. Cannon will oversee the pretrial legal battle, a potential jury trial, and, if Trump is convicted, she will decide his prison sentence.