With Donald Trump facing multiple investigations, one of the most pressing questions facing the Justice Department is how it might handle a possible indictment of a former president. As NBC News reported, we now know the answer.
Former President Donald Trump will be the subject of a second special counsel investigation, this one focused on his handling of classified documents found at his Mar-a-Lago home and “key aspects” of the investigation into his role in the Jan. 6 attack on the Capitol, Attorney General Merrick Garland said Friday.
Garland has appointed John L. Smith, known as Jack Smith, a longtime federal prosecutor who previously served as the chief of the Justice Department’s Public Integrity Section, where he oversaw public corruption and elections-related investigations.
More recently, Smith has prosecuted suspected war criminals at The Hague.
This will be the second special counsel investigation Trump has faced, following Robert Mueller's appointment to oversee the probe into the Russia scandal. Other American presidents have faced criminal investigations, but Trump has broken new ground by facing multiple criminal investigations.
Today’s news is striking, though not entirely unexpected: The New York Times reported two weeks ago that federal prosecutors have been “compiling evidence and case law that could be used to frame a memo that would be the basis for any prosecution” against the former president, adding that the Justice Department was “considering appointing a special counsel to oversee investigations of him if he runs again.”
Eleven days later, the Republican launched his 2024 candidacy. This afternoon, the attorney general named a special counsel to help oversee the investigations into both the Mar-a-Lago scandal and the probe into Trump's alleged Jan. 6 misconduct.
The appointment, Garland said, “underscores the department’s commitment to both independence and accountability in particularly sensitive matters.” He added, "Mr. Smith will begin his work as special counsel immediately."
Though many anticipated such an appointment, the move is not without controversy. Justice Department officials have spent months — in the Jan. 6 matter, more than a year — examining the details of Trump’s alleged misdeeds, and there’s no obvious need to bring in someone new who hasn’t been involved in the probes up until now.
Many have argued that such a move is politically necessary: In light of Trump’s 2024 kickoff, it’s unrealistic, the argument goes, to think President Joe Biden’s attorney general could credibly indict Biden’s former and potentially future rival. Naming an independent counsel will offer political insulation against allegations of abuse, and reassure the public about the integrity of the process.
At least, that’s the theory. In practice, there’s no reason to believe Trump and his followers will be impressed. No matter who’s overseeing the investigations and scrutinizing the evidence, Republicans will reject the idea that the matter has been handled in a fair and an even-handed way — even if it’s been handled in a fair and an even-handed way.
Indeed, a spokesperson for the former president’s campaign told NBC News this afternoon, “This is a totally expected political stunt by a feckless, politicized, weaponized Biden Department of Justice.”
Such a response is obviously unfair and untrue, but it offers a preview of the kind of reaction we'll see if Jack Smith were to ultimately endorse charges against the Republican: The special counsel's independence will hardly shield him and the department against baseless and partisan claims.
Another consideration, of course, is time. Smith issued a statement this afternoon, which read in part, “The pace of the investigations will not pause or flag under my watch.” Maybe, but getting a special counsel’s office up and running immediately is a daunting challenge.
Perhaps most important of all is the fact that Trump was being treated, by and large, the same way any other criminal suspect would be treated: The Justice Department had reason to believe a private citizen might’ve committed a crime. Investigators proceeded to do what they always do: They compiled evidence, spoke to witnesses, and followed the law.
That process has unfolded methodically, slowly, and by the book — until today, when the department decided to add a new layer of complexity, effectively concluding that Trump isn’t just like any other private citizen after all. The normal, standard process has, in this case, been replaced.
It’s possible Garland chose the politically prudent course. Maybe Smith will act as some kind of heat shield for the department and his findings will be broadly accepted as legitimate, no matter what he concludes.
But there was something to be said for investigations that treated the former president just like everyone else.