Friday, November 18, 2022
AG Merrick Garland today appointed John L. Smith as special prosecutor in the investigations into efforts to interfere with the lawful transfer of power after the 2020 election and Trump's illegal retention of government documents at Mar-A-Lago. Smith is a former head of DOJ's Public Integrity Section and former chief prosecutor for the special court at the Hague.
The appointment means that the investigation and any criminal charges will now come from the special counsel, operating independently of ordinary DOJ channels. AG Garland likely made the appointment to avoid even the appearance of a conflict now that Trump declared his candidacy for the presidency in 2024. We don't know how quickly the special counsel will move, and we likely won't know that for some time. But the office isn't starting from scratch: it can pick up where DOJ left off its own investigations into these matters.
The appointment authorizes the special counsel to investigate these matters and to prosecute federal crimes that arose out of them. Neither investigation nor prosecution is limited to Trump (or anyone else). But the "authorization does not apply to prosecutions that are currently pending in the District of Columbia, as well as future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021." As the appointment explains, those matters "remain under the authority of the United States Attorney for the District of Columbia."
In addition to investigation the insurrection and document retention, AG Garland's appointment letter and the regs authorize the special counsel to investigate "any matters that arose or might arise directly" from those investigations, including obstruction and perjury.
The special counsel will operate almost entirely outside the DOJ's chain of command. But that doesn't mean that AG Garland is necessarily bound to all the special counsel's decisions. 28 C.F.R Sec. 600.7(b) provides:
The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or procedural step, and may after review conclude that the action is so inappropriate or unwarranted under established Department practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress . . . .
Moreover, special counsel staff are "subject to disciplinary action for misconduct and breach of ethical duties," and the AG can remove the special counsel "for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies."