Newly-appointed special counsel Jack Smith is moving fast on a pair of criminal probes around Donald Trump that in recent months have focused on the former president’s state of mind after the 2020 election, including what he knew about plans to impede the transfer of power, people familiar with the matter tell CNN.
Though he remains in Europe recovering from a biking accident, Smith has made a series of high-profile moves since he was put in charge last month, including asking a federal judge to hold Trump in contempt for failing to comply with a subpoena ordering him to turn over records marked classified.
Since Thanksgiving, Smith has brought a number of close Trump associates before a grand jury in Washington, including two former White House lawyers, three of Trump’s closest aides, and his former speechwriter Stephen Miller. He has also issued a flurry of subpoenas, including to election officials in battleground states where Trump tried to overturn his loss in 2020.
Smith takes over a staff that’s already nearly twice the size of Robert Mueller’s team of lawyers who worked on the Russia probe. A team of 20 prosecutors investigating January 6 and the effort to overturn the 2020 election are in the process of moving to work under Smith, according to multiple people familiar with the team.
Smith will also take on national security investigators already working the probe into the potential mishandling of federal records taken to Mar-a-Lago after Trump left the White House.
Together, the twin investigations have already established more evidence than what Mueller started with, including from a year-long financial probe that’s largely flown under the radar.
“Mueller was starting virtually from scratch, whereas Jack Smith is seemingly integrating on the fly into an active, fast-moving investigation,” said Elie Honig, a former federal prosecutor and senior CNN legal analyst.
Smith also won’t be constrained in the same way as Mueller, who deferred decisions on whether to charge Trump because he was a sitting president.
While Trump lambasted Smith’s appointment on social media, some of the former president’s attorneys think it could’ve been worse, according to people familiar with the matter. Those lawyers maintain the former president is unlikely to be indicted, according to two sources familiar. They also believe Smith’s appointment is a good thing because he is “not emotionally attached” to the original case and can look at it “dispassionately and factually,” one of the sources said.
“The fact that they found a guy who has been Europe for the past several years, without his brain marinating in the soup of January 6th coverage, that’s a good thing,” the source said.
But others on Trump’s team are concerned that Smith’s appointment signals a more aggressive stance from Attorney General Merrick Garland, characterizing him as a “hit man” who is likely to bring a prosecution, people familiar with their thinking said.
On Friday, the Justice Department’s approach in the Mar-a-Lago case hit a small bump, with a federal judge declining to hold Trump in contempt of court and urging DOJ and Trump’s team to work out a resolution as investigators attempt to make sure all national security records are back in the possession of the federal government.
Behind the scenes, in separate sealed proceedings related to January 6, Smith has already told the federal court he is in charge of the investigation, according to some of the sources. And while Trump lawyers on the January 6 probe have not been in touch directly with Smith at this point, according to some of the sources, they anticipate they will eventually speak with him once he returns to the US.
It’s unclear how long Smith may continue to work before deciding on any charges in either probe. While both investigations may result in charges within months, Smith could still spend time organizing and expanding his team, and continuing to pick through information that’s been collected, according to people familiar with parts of the probe.
“It could well be that Jack Smith moves more quickly than Merrick Garland would and forces a decision to Merrick Garland’s desk more quickly than it might have otherwise,” said Honig.
According to a handful of people familiar with the probe, there is still work to be done to centralize all the moving parts of large prosecution teams under the new special counsel’s office.
Smith is expected to set up a physical office for the two investigative teams away from the downtown Justice headquarters, as Mueller did for his probe and as did John Durham, who is nearing the end of his examination of 2016 Trump-Russia investigation.
According to several people familiar with his appointment, Smith will operate more like a US Attorney – managing an existing team of career prosecutors already working on the cases, and signing off on evidence they bring him – rather than as a de facto-department head like Mueller, who tapped several lawyers from outside the Justice Department to pursue parts of the Russia investigation from scratch.
Mueller also had his own set of legal advisers akin to a shadow Justice Department appeals and policy team. Smith likely won’t have the same set-up – with lawyers from throughout the Department assisting as needed, according to multiple people familiar with the office’s development.
Garland already turned to a long-time criminal appellate section leader, Patty Stemler, who retired earlier this year from DOJ, to advise as a consultant on the January 6 investigations throughout this year.
Others from Stemler’s former unit and other sections are likely to shepherd cases and policy issues as needed, in a departure from Mueller’s soup-to-nuts approach of preparing for thorny Constitutional issues and appeals in the Russia investigation, some of the sources said.
A spokesman for the Justice Department didn’t provide any comment for this story.
Publicly released court filings have already made clear Trump is under investigation for the mishandling of national security secrets after his presidency.
But the other investigative team, looking at efforts to block the transfer of power from Trump to President Joe Biden after the 2020 election, had even a year ago been given the greenlight by the Justice Department to take a case all the way up to Trump, if the evidence leads them there, according to the sources. Work that’s been led by the DC US Attorney’s Office into political circles around Trump related to January 6 now will move under the special counsel.
Partly led by former Maryland-based federal prosecutor Thomas Windom, DOJ has added prosecutors to the January 6 team from all over the department in recent months. Windom and the rest are also expected to move over to the special counsel’s office. Some, like Mary Dohrmann, a prosecutor who’s worked on several other Capitol riot cases already, appear to be reorienting, according to court records of open Capitol riot cases.
Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.
In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.
In interviews with people in Trump’s orbit over the past several months, some of the DOJ focus has been on the timeline leading up to January 6 and Trump’s involvement and knowledge of potential events that day, according to a source familiar with the questioning.
Trump allies have consistently maintained that nothing Trump did related to the election and January 6 itself amounts to a crime. They have also suggested that if Trump were to ultimately face an indictment, the bar to prove he committed a crime is extremely high, and that a jury would hear he was getting conflicting advice from different lawyers. For example, Trump allies point out, White House Counsel Pat Cipollone told Trump that Vice President Mike Pence couldn’t block the election certification on January 6, while Rudy Giuliani and others believed he could.
Even earlier this year, federal prosecutors were specifically asking witnesses whether there was a plan to steal the election and for Trump not to concede, according to a source with knowledge of the questions posed during this stage of the DOJ criminal probe.
The DOJ probe has evolved significantly since that time, but sources familiar with testimony before the grand jury in recent months have told CNN that prosecutors are still focused on the core question of whether there was a plan to steal the election and Trump’s understanding about the relevance of January 6.