- The Washington Times - Friday, November 18, 2022

Attorney General Merrick Garland has appointed Jack Smith, a longtime Justice Department prosecutor, as a special counsel to explore criminal charges against former President Donald Trump.

Mr. Smith’s work will begin immediately, Mr. Garland said at a rare press conference from the Justice Department headquarters. He will oversee the department’s probe into Mr. Trump’s efforts to overturn the 2020 election and the investigation into whether Mr. Trump illegally took classified documents from the White House.

“Appointing a special counsel at this time is the right thing to do. The extraordinary circumstances presented here demand it,” Mr. Garland said. “Mr. Smith is the right choice to complete these matters in an evenhanded and urgent manner.

Mr. Trump called Mr. Garlands’ new move “a disgrace” and vowed not to “partake” in another special counsel probe aimed at him.

“I have been proven innocent for six years on everything — from fake impeachments to [former special counsel Robert] Mueller who found no collusion, and now I have to do it more?” Mr. Trump said on Fox News. “It is not acceptable. It is so unfair. It is so political.”

The former president questioned the timing of the probe so soon after he announced his 2024 presidential campaign.

SEE ALSO: DOJ says Trump ‘abandoned’ privilege claim that seized documents are privileged

“I have never heard of such a thing. They found nothing. I announce and then they appoint a special prosecutor,” he said. “They found nothing, and now they take some guy who hates Trump. This is a disgrace and only happening because I am leading in every poll in both parties.”

The announcement comes three days after Mr. Trump announced his 2024 presidential run, which complicated the Justice Department probes.

Mr. Trump maintains he is the target of a politicized Justice Department, and the arrival of a special counsel will only inflame Mr. Trump and his supporters.

White House press secretary Karine Jean-Pierre said Mr. Garland did not give President Biden advance notice of his decision to appoint a special counsel. 

“The Department of Justice makes decisions about its criminal investigations independently,” she told reporters at the White House. “We are not involved. We were not aware of this particular investigation.”

Mr. Garland said Mr. Trump’s announcement and Mr. Biden’s stated intent to seek reelection in 2024 were factors in his decision to name a special counsel. He said it was in the public interest for a special counsel to take over the cases.

“Such an appointment underscores the department’s commitment to independence and accountability in particularly sensitive matters,” Mr. Garland said.

Mr. Trump is under investigation for his efforts to overturn President Biden’s election victory in 2020, including his role in the Jan. 6, 2021, riot at the U.S. Capitol. That probe stretches across multiple federal agencies and as part of that investigation, Mr. Smith will decide “whether any person or entity unlawfully interfered with the transfer of power.”

The Justice Department is also investigating whether Mr. Trump may have violated the Espionage Act by illegally retaining government documents after he transported thousands of documents, including some marked “classified” to Mar-a-Lago at the end of his administration.

Mr. Smith will not intervene in the state probe in Georgia launched by the Fulton County district attorney. That investigation is looking into Mr. Trump’s efforts to overturn the results of the 2020 election in Georgia.

By appointing a special counsel, Mr. Garland is seeking to insulate himself against allegations of abuse of power and reassure the public that Mr. Trump is being treated fairly.

Still, the move is unlikely to appease Trump supporters who have claimed the Justice Department and FBI have weaponized against the former president.

Mr. Trump himself highlighted those criticisms when he announced his presidential campaign last week, promising “a top-to-bottom overhaul to clean out the festering corruption” in the FBI and Justice Department.

“Anyone who truly seeks to take on this rigged and corrupt system will be faced with a storm of fire that only a few could understand,” he said.

Rep. Claudia Tenney, New York Republican, slammed the special counsel appointment, saying it was hypocritical to intensify the Trump probes while continuing to slow-walk its probe into alleged tax crimes by Hunter Biden. 

“Appointing a special counsel to investigate President Trump will continue to politicize the Justice Department, moving its focus even further away from the real threat to the rule of law: President Joe Biden’s role in Hunter’s corrupt enterprises,” she wrote on Twitter. 

Rep. Eric Swalwell, California Democrat, said the special counsel was the best way to ensure justice is served in the pursuit of prosecuting Mr. Trump.

Donald Trump has tested us time after time since he came down that escalator at Trump Tower,” Mr. Swalwell said on CNN, referring to when Mr. Trump announced his 2016 presidential run. “He will be held to account. If we go tit for tat with him, it ultimately reduces our whole system and the confidence people have in it. So I would rather see us get it right, recognizing that democracy is at stake.”

It is the third special counsel appointed in the last five years to look into issues surrounding Mr. Trump. Special counsel Robert Mueller probed ties between Mr. Trump’s 2016 campaign and Russians who interfered in that year’s election. In 2020, Attorney General William P. Barr named John Durham to investigate the origins of the FBI’s Russian collusion probe.

Other political candidates have been investigating while running for office, including candidates for president. Most notably, Hillary Clinton was under an FBI investigation for her use of a private email server as secretary of state when she ran against Mr. Trump in 2016. 

That probe was opened in 2015 and continued throughout the 2016 election, including when it was surprisingly reopened less than two weeks before Election Day.

Justice Department rules say an attorney general can only pick a special counsel if a case meets several criteria, including a conflict of interest, extraordinary circumstances or it would be in the public interest.

A special counsel essentially has the same powers as a U.S. attorney and remains subject to the attorney general, so it does not grant new authority investigators already have. However, the title would give Mr. Smith more independence to pursue the investigation and protect him from arbitrary firing.

Under federal law, a special counsel can be removed only for “misconduct, dereliction of duty, incapacity, conflict of interest or other good cause.” An attorney general is also required to explain the firing of a special counsel to Congress.

An attorney general may overrule or block a special counsel on major steps, such as whether to charge someone with a crime, but such decisions must also be explained to Congress.

Mr. Smith’s career as a prosecutor began in Manhattan in the early 1990s. He spent roughly a decade as a federal prosecutor in Brooklyn, before leaving in 2008 to become a war-crimes prosecutor at the International Criminal Court at The Hague.

He returned to the Justice Department, taking over the Public Integrity Unit. In 2018, Mr. Smith returned to The Hague, where he served as chief prosecutor for the special court investigating war crimes in Kosovo.

In a statement, Mr. Smith vowed to carry out his new assignment “in the best traditions of the Department of Justice.”

“The pace of the investigations will not pause or flag under my watch. I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate,” he said.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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