The US attorney general Merrick Garland has appointed a special counsel to determine whether Donald Trump should face criminal charges stemming from investigations into the former’s president’s alleged mishandling of national security materials and his role in the 6 January attack on the US Capitol.
The politically explosive move comes just three days after Trump announced he is running for the White House yet again, despite a disappointing Republican performance in the midterm elections, especially among candidates backed by the ex-president.
“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 told a press conference on Friday.
Garland named Jack Smith, a veteran prosecutor and top former justice department official, to oversee the investigations into Trump as the justice department examines his role in retaining classified documents at his Mar-a-Lago residence and in the effort to subvert the 2020 election.
The appointment of a special counsel, delivered by Garland at justice department headquarters in Washington DC, reflects the sensitivity of the justice department overseeing the two most hazardous criminal investigations into Trump, and an increased possibility of charges being brought over either matter.
Special counsels are semi-independent prosecutors who can be installed for high-profile investigations when there are conflicts of interest, or the appearance of such conflicts, and provide a mechanism for the justice department to insulate itself from political considerations.
Trump predictably attacked the move within hours, and complained about an “appalling decision today by the egregiously corrupt Biden administration” at a black-tie event Friday night after earlier telling Fox News’s digital arm: “It is not acceptable. It is so unfair. It is so political.”
The appointment of a special counsel marked an anxious development for the ex-president, who was previously the subject of former special counsel Robert Mueller’s investigation shortly after he took office that examined ties between his 2016 presidential campaign and Russia.
Trump has already spent months since the FBI seized 103 documents marked classified from Mar-a-Lago accusing the justice department under president Joe Biden of pursuing him for political reasons – a tension likely to become more biting as the 2024 election draws nearer.
But it was to allay those concerns, Garland said at the news conference, that he chose to appoint Smith to run the investigations. “Appointing a special counsel at this time is the right thing to do,” Garland said. “The extraordinary circumstances presented here demand it.”
Smith, a graduate of Harvard law school, was described by current and former justice department officials as being particularly qualified for the role, given his low political profile – he is registered to vote as an Independent – and vast experience running complex criminal investigations.
The former chief of the public integrity section at the justice department from 2010 to 2015, which handled government corruption probes, Smith has also acted as a special prosecutor in The Hague, adjudicating war crimes in Kosovo, as well as a prosecutor in New York.
“Smith helped prosecute a police brutality case that drew national attention at the US attorney’s office in Brooklyn, which previously investigated Trump over possible fraud charges in a six-month inquiry that ended without charges.”
Smith was also briefly involved in the prosecution of a CIA agent for disclosing national defense information and obstructing justice – crimes that echo potential charges against Trump, according to the warrant used by the FBI to search Mar-a-lago.
In a statement released by the justice department, Smith said: “I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice.
“The pace of the investigations will not pause or flag under my watch. I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
The appointment of a special counsel could indicate that the justice department has already accumulated substantial evidence of potential criminality by Trump and his allies, said Barbara McQuade, University of Michigan law school professor and former US attorney.
“One thing that is significant is this suggests that they think there’s a very real possibility of charges. If they were going to close the case, it would be closed by now,” McQuade said.
But some legal experts criticized the appointment of a special counsel, saying it risked delaying the investigations – particularly the Mar-a-Lago documents case – and allowed Garland to duck having to make potentially bruising prosecutorial decisions.
“I disagree pretty strongly with the decision by attorney general Garland to seek a special counsel. I don’t think it’s needed under the regulations and I think it risks delaying this investigation needlessly,” former acting US solicitor general Neal Katyal told MSNBC.
“To me, I don’t really see what the case is for a special counsel. Attorney general Garland said it was because of a conflict of interest because Trump has announced that he’s running. That, to me, is tantamount to regarding Donald Trump for all the maneuvers he’s making,” Katyal said.
The White House press secretary, Karine Jean-Pierre, said Biden had not been given any advance notice of Garland’s announcement. “No, he was not aware, we were not aware,” she said at a delayed press briefing. “The department of justice makes decisions about criminal investigations independently. We are not involved.”
• This article was amended on 21 November 2022 to correct some details of Jack Smith’s biography.
