Court Battles

What is a special counsel?

Jack Smith
AP Photo/Charles Dharapak
In this Aug. 24, 2010, photo, Jack Smith, the Department of Justice’s chief of the Public Integrity Section, poses for photo at the Department of Justice in Washington.

Jack Smith has been appointed special counsel to oversee two criminal probes surrounding Donald Trump that could see charges brought against the former president.

Attorney General Merrick Garland announced the appointment on Friday, three days after Trump launched his 2024 White House bid. Garland said he decided it would be in the public’s interest to appoint a special counsel given several factors, including Trump’s announcement and President Biden’s own statements that he intends to run for reelection.

Smith will now take the helm of two Justice Department (DOJ) investigations: One into efforts to overturn the results of the 2020 election, including events surrounding the Jan. 6, 2021 Capitol riot, and another into the handling of classified documents found at Trump’s property in Palm Beach, Fla., in August.

Garland noted during his announcement that the DOJ has already initiated extensive investigations of the two situations, but Smith will independently manage them going forward.

The DOJ has appointed a special counsel to supervise investigations on numerous occasions throughout U.S. history. A special counsel is usually appointed to avoid a potential conflict of interest in an investigation or under “extraordinary circumstances” — the latter of which Garland cited Friday. 

Special counsels have been appointed during investigations like Watergate and more recently into Russian interference in the 2016 presidential election. Investigations can stretch for long periods — then-Special Counsel Robert Mueller submitted his report on Russian interference in March 2019 — though Garland said Friday he wants Smith to be able to “work quickly and completely.”

The attorney general is responsible for setting the scope of the special counsel’s investigation. Federal regulations state that the special counsel should consult with the attorney general if additional jurisdiction beyond what was originally specified is necessary to fully investigate the matters. The attorney general can also decide whether to assign any new matters that come to light to the special counsel or to someone else to investigate. 

Garland said the order he signed appointing Smith authorizes him to continue the department’s Jan. 6 and Mar-a-Lago documents probes and prosecute any federal crimes that come from those investigations.

The special counsel, although independent in their investigation, still reports to the attorney general. For the Trump probes, Garland and senior DOJ leadership would decide on whether any charges should be filed based on the evidence reviewed.

Importantly, a special counsel can also investigate any efforts or intent to interfere with its investigations — such as through perjury, obstruction of justice, destruction of evidence and witness intimidation.

The special counsel should also consult with the attorney general if they determine that remedies outside the criminal justice system, like civil sanctions, are appropriate, as the position does not have civil authority unless granted by the attorney general.

Smith will not be responsible for overseeing the investigations into the rioters who were at the Capitol during the Jan. 6 insurrection; the Washington, D.C., U.S. attorney’s office will continue to be in charge of those, Garland noted.

Tags attorney general Biden conflict of interest DOJ Donald Trump Jack Smith Justice Department Merrick Garland Robert Mueller special counsel
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