THREAD: What should we make of the appointment of Jack Smith as Special Counsel overseeing the criminal investigations of Donald Trump?
1/ Today's news that Attorney General Merrick Garland appointed career prosecutor Jack Smith to oversee the investigations of Donald Trump has generated significant skepticism and disagreement.
In my view, this is a prudent (and savvy) move by Garland but it's a little late.
In my view, this is a prudent (and savvy) move by Garland but it's a little late.
2/ Why appoint a Special Counsel? The answer is obvious:
Trump is the immediate past president and he just announced that he is running again. Biden defeated Trump in 2020 and will likely run against him again in 2024.
Trump is the immediate past president and he just announced that he is running again. Biden defeated Trump in 2020 and will likely run against him again in 2024.
3/ Appointment of a Special Counsel puts some distance between the criminal investigation (and potential indictment) of Trump and Biden's political appointees.
Smith is a career prosecutor who has no political reputation or known agenda.
Smith is a career prosecutor who has no political reputation or known agenda.
4/ Will Trump and his allies attack Smith? Sure. But it's harder to attack him than it is to attack Smith, and the DOJ is going to follow processes that help ensure the appearance of fairness and impartiality regardless of what the defense team will do.
5/ One thing should be pretty obvious to you -- Garland didn't appoint Smith to wind down these investigations.
If he didn't believe that there was a reasonable possibility Trump would be indicted, he wouldn't have made the appointment.
If he didn't believe that there was a reasonable possibility Trump would be indicted, he wouldn't have made the appointment.
6/ I wrote earlier this week that an indictment of Trump in the Mar-a-Lago documents case is likely and I stand by that.
Trump's willful possession of classified docs *after* DOJ demanded their return and subpoenaed them served up an easy case to DOJ. politico.com/news/magazine/…
Trump's willful possession of classified docs *after* DOJ demanded their return and subpoenaed them served up an easy case to DOJ. politico.com/news/magazine/…
7/ So why not do this earlier? That is my main disagreement with Garland.
Garland suggested that what triggered this decision was Trump's announcement of his candidacy.
But given that Trump was the immediate past president, this decision was warranted before that.
Garland suggested that what triggered this decision was Trump's announcement of his candidacy.
But given that Trump was the immediate past president, this decision was warranted before that.
8/ That said, I don't see any significant downside to appointing Smith now.
People who view this as a delay tactic by Garland often do so because they are implicitly crediting online analysis that criminal charges of Trump were always readily provable.
People who view this as a delay tactic by Garland often do so because they are implicitly crediting online analysis that criminal charges of Trump were always readily provable.
9/ But until the Mar-a-Lago documents matter, based solely on what we know publicly, there were not obvious readily provable charges that could have been brought against Trump (unless you credit the Mueller obstruction counts, which were never discussed or publicly declined).
10/ What this appointment signals to me is that Garland sees a potential indictment of Trump as likely or at least a substantial possibility, and he wants that decision to be made in the most defensible way possible.
So will this slow down the investigation in a meaningful way?
So will this slow down the investigation in a meaningful way?
11/ I don't believe it will.
This investigation has been ongoing for months, and there are already FBI agents and career prosecutors working on the case.
Smith can hire those same agents and prosecutors for his team. His role will just be to make the final judgment calls.
This investigation has been ongoing for months, and there are already FBI agents and career prosecutors working on the case.
Smith can hire those same agents and prosecutors for his team. His role will just be to make the final judgment calls.
12/ So I don't see this materially slowing things down. Maybe by weeks, not months, if at all.
A good analogy is the investigation of Paul Manafort, which was ongoing for months before former Special Counsel Robert Mueller took it over. Mueller indicted him in five months.
A good analogy is the investigation of Paul Manafort, which was ongoing for months before former Special Counsel Robert Mueller took it over. Mueller indicted him in five months.
13/ While I would have appointed a special counsel much earlier, I don't think there is a reason to believe that Smith's appointment will delay the work of the FBI and DOJ.
14/ What it signals to me is that an indictment of Trump is likely.
I don't say that lightly. During the Mueller investigation, I said that his report would disappoint Trump's critics. I didn't think the "extortion" of Ukraine was prosecutable. I'm skeptical of 1/6 charges.
I don't say that lightly. During the Mueller investigation, I said that his report would disappoint Trump's critics. I didn't think the "extortion" of Ukraine was prosecutable. I'm skeptical of 1/6 charges.
15/ But the Mar-a-Lago documents case is more like the drug cases I prosecuted as a junior prosecutor than the complex white collar cases I've handed since then. A conviction doesn't turn as much on intent or state of mind.
If you have the docs (or drugs), you're guilty.
If you have the docs (or drugs), you're guilty.
16/ So despite skepticism, I believe this announcement will turn out to be extraordinarily significant.
The end result will likely be a Trump indictment. A trial before the election is likely, but Smith's appointment makes this more likely to outlast the Biden presidency. /end
The end result will likely be a Trump indictment. A trial before the election is likely, but Smith's appointment makes this more likely to outlast the Biden presidency. /end
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