Special counsel Jack Smith has various avenues for winding down his cases against President-elect Trump before he’s expected to be fired by an incoming administration whose leader has floated arresting him.
In his investigations of Trump, Smith has asked for a pause in deadlines in his election interference case and has been silent on his Florida case bringing Espionage Act and obstruction of justice charges after Trump refused to return documents with classified markings following his first term.
But while such action likely signifies the end of Smith’s cases, he has avenues for closing out his tenure with more of a punch — including by releasing a special counsel report reviewing his investigation.
“I think he knows it is inevitable that Donald Trump will pull the plug on the case, and so I think he wants to explore ways to end the case on his own terms, rather than wait for that to happen,” said Barbara McQuade, a former U.S. attorney under the Obama administration who now teaches law at the University of Michigan.
“I imagine that he is now going to hustle to get that done before the end of this administration, so that [Attorney General] Merrick Garland can share that with the public. … And even though it seems likely that both cases will be dismissed and never go to trial, at least there will be a historic record of what happened.”
While Smith has laid out his case against Trump, much of the evidence he’s collected remains under wraps, and the totality of his investigation is still unclear.
Though Smith turned over the bulk of his documents and grand jury transcripts to Judge Tanya Chutkan to help sort whether Trump is potentially immune from prosecution for many of his actions related to Jan. 6, 2021, they were heavily redacted and offered few insights.
In the Jan. 6 case, Smith has asked Chutkan to suspend deadlines until Dec. 2, as he needed time “to assess this unprecedented circumstance and determine the appropriate course going forward.”
In Florida, he’s yet to make any filings with the 11th Circuit, which is reviewing a lower court decision that found he was unlawfully appointed — a decision the Justice Department may be reticent to let stand.
The report pathway will no doubt be a disappointment to those who saw the case as an important mechanism for holding Trump accountable for Jan. 6.
“My own view is that Smith should not be changing course and pivoting towards writing a final report — I respectfully disagree with that decision,” said Norm Eisen, counsel for Democrats in Trump’s first impeachment.
“I think that final report that he sends to Garland, which can be sent to Congress and released in public, will have an important role to play, but I think it would have sent a more important signal to just continue with the proceedings.”
McQuade noted Smith has other options, including filing a motion to dismiss the case without prejudice — a move that keeps the door open to bringing the charges again down the road, should prosecutors argue the statute of limitations pauses while Trump is in office.
If Smith did that, Trump’s own appointees at the Justice Department would be in the unusual position of weighing whether to refile the case or just to move to dismiss it, killing it completely.
“It puts them in this awkward position of, ‘Really, are we gonna file this thing only so that we can dismiss it?’ And that alone would be an abuse, because you’re not supposed to file charges unless you intend to follow through with them. So it puts them in a little bit of a funny position,” McQuade said.
However Smith decides to move forward while President Biden is still in office, he is a prime target for Republicans come January.
While U.S. attorneys resign when a new administration comes in, the same is not true of special counsels. For Smith, however, Trump has said he plans to fire him “within two seconds” of taking office.
And Republicans have made clear they plan to continue their probe of Smith after already requesting he turn over documents related to his investigation.
“There were a lot of figures related to the Justice Department and on the outside of the Justice Department that used lawfare against President Trump. There needs to be very serious accountability for that, because we have to restore the people’s faith in our system of justice,” Speaker Mike Johnson (R-La.) told reporters Tuesday.
“What that accountability looks like, and to whom it is extended, there are a lot of decisions yet to be made.”
House Judiciary Chair Jim Jordan (R-Ohio) and Rep. Barry Loudermilk (R-Ga.), chair of the House Administration Subcommittee on Oversight, asked the special counsel last week to preserve all records related to his investigation.
Both were figures investigated by the now-disbanded Jan. 6 committee.
And there are also questions about whether Trump’s Justice Department would investigate or prosecute Smith, though it’s unclear what charges would even be brought.
“I think that the jury is out on how Trump will govern. … If he indulges his vendettas, as he mused about, as he did in his first administration, then Jack Smith is in for the similar treatment as Andy McCabe, Peter Strzok and Lisa Page, Jim Comey. All of them faced various kinds of hostile action,” Eisen said, listing former FBI employees.
“Jobs were lost, reputations were attacked, litigation was had … but safeguards to some extent held,” he said, adding that Trump “was not able to achieve his objectives of total destruction.”
McQuade noted that Trump’s Justice Department would need to convince prosecutors to bring the charges, only to face what could be a skeptical grand jury and judges within the legal system.
Congress could also seek to bring Smith before various panels to testify.
It’s not uncommon for special counsels to do so after issuing a report, but attorneys have cautioned that such a move may not be a boon to the GOP.
“What you could do is call him in to testify. And there, I would say to the Republicans, be careful what you ask for. Because if Jack Smith has a forum to talk about these cases, it’s — I doubt it would go so well for President Trump,” legal analyst Jeffrey Toobin told CNN’s Anderson Cooper on Friday.
McQuade also sees little upside for Republicans.
“I say, ‘Bring it on,’ because it seems most likely to me that he investigated this case in compliance with all of the Justice Department policies, procedures, practices and safeguards, that the indictment was returned by a grand jury and that he’d be delighted to go before a public forum and testify publicly before Congress about all of the evidence he uncovered,” she said.
“So I would say to those Republicans, be careful what you wish for, because it is likely that you would be inviting an opportunity for Jack Smith to share with the public all of the unsavory facts he has uncovered in the investigation.”
