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Justice Department names special counsel for Trump criminal probes

Attorney general says 'extraordinary circumstances' of 2024 presidential race make it 'the right thing to do'

Attorney General Merrick B. Garland delivers remarks alongside Deputy Attorney General Lisa O.  Monaco and Assistant Attorney General Kenneth Polite at the Justice Department on Friday.
Attorney General Merrick B. Garland delivers remarks alongside Deputy Attorney General Lisa O. Monaco and Assistant Attorney General Kenneth Polite at the Justice Department on Friday. (Anna Moneymaker/Getty Images)

Attorney General Merrick B. Garland appointed a special counsel Friday to oversee criminal investigations of Donald Trump related to the Jan. 6, 2021, attack on the Capitol and mishandling of classified information.

The announcement comes three days after the former president announced his third bid for the White House, and three months after federal agents searched Trump’s private club Mar-a-Lago and found documents marked as classified.

John L. “Jack” Smith, a veteran federal prosecutor, will take over the highly politically charged investigations. Garland, at a brief press conference at Justice Department headquarters, said the “extraordinary circumstances” of the upcoming 2024 presidential race made this “the right thing to do.”

“Based on recent developments, including the former president’s announcement that he is a candidate for president in the next election, and the sitting president’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,” Garland said.

The attorney general also said the appointment would not slow the completion of the investigations, and “underscores the department’s commitment to both independence and accountability in particularly sensitive matters.”

Garland makes that call under DOJ regulations, former federal prosecutor and George Washington University law professor Randall Eliason wrote on his blog.

“It’s hard to imagine a starker conflict of interest,” Eliason said of the Trump-Biden race for the White House. “Any resulting prosecution could easily lead to a perception that the attorney general is trying to ‘take out’ one of his boss’s chief political rivals.”

Friday’s comments are Garland’s first since August, when the search of Mar-a-Lago prompted Republicans to accuse the DOJ and FBI of a conspiracy against Trump.

Garland said up until Friday, U.S. Attorney Matthew Graves oversaw the investigation into the effort to interfere in the certification of the 2020 election. Assistant Attorney General for National Security Matthew G. Olsen oversaw the investigation into classified documents seized from Mar-a-Lago.

Garland pointed to Smith’s decades of experience as a prosecutor, starting as an assistant district attorney in New York.

Smith took over the Justice Department’s Public Integrity Section in 2010 following the controversy surrounding the unit’s prosecution of late Sen. Ted Stevens. After prosecutors were found to have withheld information in the case, Stevens’ conviction was overturned and Smith took on leadership of the unit.

Most recently, Smith worked as chief prosecutor at the special court in The Hague, prosecuting war crimes in Kosovo. Garland said Smith would return to the United States to take over the investigations.

“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. “As special counsel, he will exercise independent prosecutorial judgment to decide whether charges should be brought.”

Smith will take over a sprawling set of probes, including the ongoing DOJ effort to access the thousands of documents it seized in the search of the former president’s private club.

On Tuesday the DOJ will argue for the U.S. Court of Appeals for the 11th Circuit to overturn a lower court order that put evidence from the search of Mar-a-Lago under review of a special master.

Previously the same appeals court allowed investigators to look at the more than 100 classified documents the government seized in the search.

Trump initially won a court order from District Judge Aileen Cannon, who he appointed, halting the criminal probe and sending all documents seized in the search to a special master to review.

Throughout the court fight so far, Trump has argued the Biden administration abused the criminal justice process to take out a potential political rival.

The ongoing DOJ investigation into Trump’s effort to overturn his loss to President Joe Biden in the 2020 election which culminated in the Jan. 6, 2021, attack on the U.S. Capitol, has been less public.

The House select committee investigating the Jan. 6 attack, which has contemplated criminal referrals of Trump and others to the DOJ may end up handing off its investigation to the special counsel.

The panel held its likely last hearing in October, which ended with a vote to subpoena Trump for testimony about his effort to overturn the election.

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