WASHINGTON (AP) — The appointment of a special counsel to oversee the remainder of two significant investigations related to former President Donald Trump focuses fresh attention on the role such prosecutors have played in modern American history.
In this case, Attorney General Merrick Garland has turned to Jack Smith, a veteran war crimes prosecutor with a background in public corruption probes to lead investigations into the retention of classified documents at Trump’s Florida estate, Mar-a-Lago, as well as key aspects of a separate probe involving the Jan. 6, 2021, insurrection and efforts to undo the 2020 election.
A look at the origins of the special counsel, the position’s powers and what to expect as Smith pursues his work:
WHAT EXACTLY IS A SPECIAL COUNSEL?
A special counsel is an attorney appointed to investigate, and possibly prosecute, a case in which the Justice Department perceives itself as having a conflict or where it’s deemed to be in the public interest to have someone outside the government come in and take responsibility for a matter.
According to the Code of Federal Regulations, a special counsel must have “a reputation for integrity and impartial decisionmaking,” as well as “an informed understanding of the criminal law and Department of Justice policies.”
Though they’re not subject to the day-to-day supervision of the Justice Department, special counsels must still comply with department regulations, policies and procedures. They also technically report to the attorney general — the one government official who can fire them.
The attorney general is entitled to seek explanations from a special counsel about any requested investigative or prosecutorial step, but under the regulations, is also expected to give great weight to the special counsel’s views. In the event the attorney general rejects a move the special counsel wants to make, the Justice Department is to notify Congress at the end of the investigation.
WHAT POWERS DO THEY HAVE?
Special counsels are provided with a budget and can request a staff of attorneys, both inside the outside the department, if they need extra help. Smith is expected to inherit the months of work that’s already been done by career prosecutors rather than start from scratch.
In addition to the ability to bring indictments, special counsels are vested with bread-and-butter law enforcement tools such as the power to issue subpoenas and search warrants. Robert Mueller, the former FBI director who as special counsel in the Trump administration led the investigation into possible coordination between Russia and the 2016 Trump campaign, issued more than 2,800 subpoenas and executed nearly 500 search-and-seizure warrants.
HOW DO INDEPENDENT COUNSELS DIFFER FROM SPECIAL COUNSELS?
Smith’s position as special counsel differs in key ways from the work of independent counsels who used to operate outside the supervision of the Justice Department and who led significant investigations in the post-Watergate era into administrations of both political parties.
One such independent counsel was Lawrence E. Walsh, who during the “Iran Contra Affair” in President Ronald Reagan’s second term was appointed to probe secret arms sales to Iran and the diversion of funds to rebel forces fighting the Nicaraguan government.
A decade later, independent counsel Ken Starr investigated fraudulent real estate deals involving a long-time associate of President Bill Clinton and first lady Hillary Clinton, delved into the removal of documents from the office of deputy White House counsel Vincent Foster after his suicide and assembled evidence of Clinton’s sexual encounters with former White House intern Monica Lewinsky. As a result, Clinton was impeached by the U.S. House but survived a Senate trial.
But amid concerns over the cost and sprawling nature of such probes, Congress in 1999 permitted the provision governing independent counsels to expire.
The Justice Department then created new special counsel regulations, designing a position with intentionally less autonomy for circumstances in which the department feels it has a conflict of interest or wants to avoid becoming excessively entangled in politically sticky matters — like the current Trump-related probes.
Smith isn’t even the first special counsel to deal with Trump-related matters.
Mueller was appointed in 2017 to investigate Russian election interference, a two-year probe that yielded criminal charges against 34 people, including several Trump associates, and three business entities. Mueller did not allege a criminal conspiracy between the Trump campaign and Russia. Though Mueller reached no conclusion on whether Trump obstructed justice, he also did not exonerate him.
Weeks before then-Attorney General William Barr left office, he gave John Durham, then the top federal prosecutor in Connecticut, the title of special counsel to ensure that he could continue investigating the origins of the Russia probe under new, Democratic Justice Department leadership.
WHO IS SPECIAL COUNSEL JACK SMITH?
He’s a veteran prosecutor who for five years oversaw the Justice Department’s public integrity section, which investigates wrongdoing by politicians and election crimes. He arrived in 2010, tasked with restoring a vaunted unit which had rocked by a scandal over the failure to produce exculpatory evidence in a prosecution of former Alaska Sen. Ted Stevens.
During his tenure in that job, the unit brought tough cases against prominent public figures of both political parties, including Republican Gov. Bob McDonnell (the Supreme Court ultimately threw out his public corruption conviction) and former Democratic vice presidential nominee John Edwards. A jury in that campaign finance case acquitted him on one count and deadlocked on all others.
He later led the U.S. attorney’s office in Nashville before becoming vice president of litigation for a non-governmental healthcare provider. More recently, he’s been a prosecutor for the special court in The Hague that investigates war crimes in Kosovo.
The Justice Department on Friday described Smith as a registered independent, an effort to blunt any attack of perceived political bias. Trump is a Republican, and Biden is a Democrat.
Outside of work, the hard-charging Smith is a competitive athlete who says he’s participated in triathlons around the world.
Kinnard reported from Columbia, S.C.
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New special counsel has long career confronting corruption
WASHINGTON (AP) — The year was 2010 and the Justice Department’s prestigious public integrity section was still recovering from a costly debacle over the withholding of exculpatory evidence in a case against Alaska Sen. Ted Stevens.
The crisis had caused then-Attorney General Eric Holder, in a remarkable move, to ask a judge to throw out all convictions against the Republican lawmaker.
In search of a new leader for the unit, the Justice Department turned to a war crimes prosecutor in The Hague who’d cut his teeth in New York prosecuting state and federal crimes, including the brutal beating of a Haitian immigrant by police. Jack Smith told The Associated Press in an interview that year that he’d read about the Stevens case and couldn’t resist the chance to step in and run the section.
“I had a dream job and I had no desire to leave it, but opportunities like this don’t come up very often,” Smith said. “I left the dream job for a better one.”
Now, Smith has a new position that, if not necessarily a dream job, nonetheless places him at the center of two of the most significant Justice Department investigations in years. As a newly named special counsel, Smith will be tasked with overseeing probes into the retention of classified documents at former President Donald Trump’s Florida estate, Mar-a-Lago, as well as aspects of an investigation into efforts to overturn the 2020 election won by Democrat Joe Biden.
The investigations carry obvious political implications because they concern a former president and current White House hopeful — indeed, Attorney General Merrick Garland cited Trump’s entry into the race this week, along with Biden’s stated intention to run again, as reasons he acted now in appointing Smith on Friday.
Smith will presumably have to move swiftly to ensure his work concludes before the home stretch of the 2024 presidential election, given the Justice Department’s historic interest in avoiding action that could be seen as interfering in the outcome of a race.
Colleagues who have worked with Smith describe him as hard-charging, fast-working and passionate, a prosecutor who operates free of political persuasion and who is relentless about his cases. He displays a similar style outside court, where he is a competitive athlete who has participated in triathlons all over the world.
“He’s an exquisite lawyer and an exquisite prosecutor,” said Lanny Breuer, who led the Justice Department’s criminal division, which includes the public integrity section, at the time Smith was hired for the job. “He’s not political at all. He’s straight down the middle.”
The Harvard-educated Smith spent his formative years in New York, where his cases included the prosecution of police officers involved in the broomstick sodomy of Haitian immigrant Abner Louima. While in New York, he once spent a weekend sleeping in the hallway of an apartment building so he could intercept a victim who was afraid to testify in a domestic violence case. The woman wound up taking the stand after what Smith said was a “long, long talk.”
After a stint as a war crimes prosecutor, he rejoined the Justice Department to lead the public integrity section. During his tenure, the section pressed ahead with significant, but challenging, prosecutions against prominent public figures from both political parties.
Prosecutors scored a public corruption conviction against former Virginia Gov. Bob McDonnell, a Republican, but the case was later overturned by the Supreme Court. The section also prosecuted former Democratic vice presidential nominee John Edwards, but a jury acquitted him on one count and deadlocked on others and the Justice Department declined to try him again.
Although those two cases ultimately came up short, the section brought successful cases against a number of state officials charged with defrauding taxpayers as well as service members who defrauded the military. There were high-profile victories for the section, too.
Smith, for instance, led the unit when Arizona congressman Rick Renzi was convicted of corruption, a verdict that was left in place by the Supreme Court — though Trump pardoned the Republican before he left office. Former New York state Assembly Speaker Sheldon Silver was indicted in 2015 on corruption charges, and was later sent to prison.
As chief, he also showed a willingness to walk away from cases when the evidence was insufficient, closing out some long-running investigations into political figures without charges. He told the AP in the same 2010 interview that “you have to be able to admit that if it’s not there, it’s not there.”
In 2015, Smith became a federal prosecutor in Nashville and later served as acting chief of that office before heading to private practice and, more recently, as chief prosecutor for the special court in The Hague tasked with investigating war crimes in Kosovo.
Alan Tieger, a fellow war crimes prosecutor who has worked with Smith, described him as “both a guy imbued with old-fashioned ideals but who’s relentless and driven and brilliant.” He said Smith “brings that entire skill set to bear.”
“You never see Jack dragging through a day,” Tieger said. “He’s full-on every day.”
Yet even in a career of high-profile cases, the Trump investigations are likely to be closely watched, his actions dissected by the public not just through a legal lens but also for their political impact.
He will be responsible for assessing whether Trump or anyone else should be prosecuted. His decisions are to be given such great deference that, under the regulations, should the Justice Department reject any major investigative step or move that Smith wants to take, it would have to notify Congress at the end of the investigation.
In a statement Friday, Smith pledged to conduct the investigations “independently and in the best traditions of the Department of Justice.”
“The pace of the investigations will not pause or flag under my watch,” he said. “I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
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