The looming decision to indict former President Donald Trump is testing whether special counsel Jack Smith's decision will be "independent" of Attorney General Merrick Garland, who has the power to reject the charging recommendation from his handpicked prosecutor.
Smith’s special counsel investigation into Trump and his alleged mishandling of classified documents at Mar-a-Lago is reportedly “wrapping up” as the Justice Department moves toward a possible indictment of the former president.
INFLATION ISSUE STILL LOOMS FOR BIDEN
“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."
Andy McCarthy, a contributing editor at National Review and a former federal prosecutor, told the Washington Examiner that it would be nonsensical for Garland to attempt to separate himself from Smith’s decision to indict Trump, comparing Garland naming Smith as special counsel to former President Barack Obama selection of self-described “president’s wing-man” Eric Holder to be attorney general.
“The whole thing is a political fiction," McCarthy said. "Smith reports to Garland and the power he exercises is Biden’s. Because Democrats are smarter than Republicans at sneaky stuff, I’m sure Smith knows exactly what is expected of him and grasps the fact that Garland doesn’t want to discuss it (in order to maintain the fiction that he has nothing to do with it). They picked Smith for the same reason Obama picked Holder — no inconvenient discussions are necessary because you’ve chosen someone who knows going in what you want done.”
Trump’s lawyers met at the DOJ with Smith and others on Monday, but Garland did not attend the two-hour meeting, despite a request from Trump's attorneys for him to be there. Meetings such as this often occur when charges are imminent.
The former president had shared a May letter from his lawyers to Garland on Truth Social with the attorneys contending that “unlike President Biden, his son Hunter, and the Biden family, President Trump is being treated unfairly” as they asked for “a meeting at your earliest convenience to discuss the ongoing injustice that is being perpetrated by your Special Counsel.”
Hunter Biden’s lawyers also met with DOJ officials representing the tax division and the U.S. attorney in Delaware in late April.
Smith has convened grand juries in the nation's capital and in southern Florida, with the Florida grand jury reportedly receiving testimony on the classified documents saga in recent days. Trump's former chief of staff, Mark Meadows, has reportedly testified before one of Smith's grand juries.
The Code of Federal Regulations section on special counsel powers says that 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.”
Garland quickly said he “personally approved the decision to seek a search warrant” for the FBI’s unprecedented raid of Mar-a-Lago in August.
Trump has been lashing out at Smith and the Justice Department on Truth Social the past few days.
Trump said Sunday that “reports are the Marxist Special Prosecutor, DOJ, & FBI, want to Indict me on the BOXES HOAX, despite all of the wrongdoing that they have done for SEVEN YEARS, including SPYING ON MY CAMPAIGN.” And the former president said Monday that “the Boxes Hoax being perpetrated upon me by the DOJ for purposes of interfering with the upcoming 2024 Presidential Election.”
Trump called Smith “a Trump hater!” on Tuesday, claiming that “they are using the DOJ & FBI against me to Rigg [sic] the 2024 Election.”
Rep. Jim Jordan (R-OH), chairman of the House Judiciary Committee, told Garland on Tuesday that his committee “is continuing to investigate” the FBI’s Mar-a-Lago raid, with Jordan saying he wanted more information on what Smith has been up to since being appointed by Garland in November.
Jordan wrote that he was writing “to request an unredacted copy of the memorandum outlining the scope of Mr. Smith’s probes regarding President Trump and any supporting documentation related to his appointment as special counsel.”
Garland’s appointment order for Smith said that 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.
Jordan also pressed Garland in a letter on Friday about special counsel John Durham’s findings related to the faulty origin of the Trump-Russia investigation and the “failings” of the FBI. The GOP chairman placed Smith’s investigation in the context of Durham’s report, arguing that “due to the FBI’s documented political bias, the Justice Department must ensure any ongoing investigations are not poisoned by this same politicization.” Jordan pushed Garland on the FBI’s involvement in Smith’s sprawling investigation into the former president.
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 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.
While chief of the public integrity section, Smith helped with the prosecution against then-Gov. Bob McDonnell (R-VA), who was indicted and convicted on federal corruption charges related to bribery in 2014. The Supreme Court unanimously overturned McDonnell’s conviction in 2016.
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.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Republicans unsuccessfully sought a special counsel to investigate the IRS scandal at the time, with Smith’s actions cited as one reason.
“Jack Smith was looking for ways to prosecute the innocent Americans that Lois Lerner targeted during the IRS scandal,” Jordan told the Washington Examiner last year.