Washington
CNN
—
Newly appointed special counsel Jack Smith is moving quickly on two criminal investigations surrounding Donald Trump that have in recent months focused on the former president’s state of mind after the 2020 election, including what he knew about plans to obstruct the transition of power , people familiar with the matter tell CNN.
Although he remains in Europe recovering from a cycling accident, Smith has made a series of important moves since being placed in charge last monthincluding a request by a federal judge to despise trump for failing to comply with a subpoena ordering him to turn over classified records.
Since Thanksgiving, Smith has arraigned a number of close Trump aides before a grand jury in Washington, including two former White House lawyersthree of Trump’s closest aides and his fsenior speech writer Stephen Miller. He has also issued a wave of subpoenas, including election officials in battleground states where Trump tried to reverse his 2020 loss.
Smith takes on a staff that is already nearly twice the size of Robert Mueller’s team of lawyers who worked on Russian probe. A team of 20 prosecutors investigating Jan. 6 and efforts 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 over from national security investigators already working to investigate the potential mishandling of federal records taken to Mar-a-Lago after Trump left the White House.
Together, the two investigations have already turned up more evidence than Mueller started with, including from a year-long financial investigation that has largely flown under the radar.
“Mueller was virtually starting from scratch, while Jack Smith appears to be integrating himself on the fly into an active, fast-moving investigation,” said Eli Honig, a former federal prosecutor and senior legal analyst for CNN.
Smith also will not be restricted in the same way as Mueller, who delayed decisions on whether to indict Trump because he was a sitting president.
While Trump has criticized Smith’s appointment on social media, some of the former president’s lawyers believe it could have been worse, according to people familiar with the matter. Those lawyers say it’s unlikely the former president will be charged, according to two people familiar with the matter. 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 “impartially and factually,” one of the sources said.
“The fact that they’ve found a guy who’s been in Europe for the last couple of years without his brain marinating in the soup of the January 6 report, 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 by Attorney General Merrick Garland, characterizing him as a “killer” who is likely to prosecute, people familiar with their thinking said.
On Friday, the Justice Department’s approach to the Mar-a-Lago case hit a small snag with a federal judge refusing to accuse Trump of disrespect to the court and is calling on the Justice Department and the Trump team to work out a resolution as investigators try 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 Jan. 6, Smith has already told a federal court he is in charge of the investigation, according to some of the sources. And while Trump’s lawyers in the Jan. 6 investigation have not contacted Smith directly at this stage, some of the sources said they expect they will eventually speak to him after he returns to the US.
It’s unclear how long Smith can remain on the job before deciding on any charges in the two probes. While both investigations could lead to indictments within months, Smith could still spend time organizing and expanding his team and continuing to gather information that has been gathered, according to people familiar with parts of the the investigation.
“It’s possible that Jack Smith moved faster than Merrick Garland and forced a decision on Merrick Garland’s desk faster than it might have otherwise,” Honig said.
There is still work to be done to centralize all the moving parts of major prosecution teams into the new special counsel’s office, according to a handful of people familiar with the investigation.
Smith is expected to establish a physical office for the two investigative teams away from Justice headquarters downtown, as Mueller did for his investigation and as John Durham, who is nearing the end of his examination of the 2016 Trump-Russia investigation.
According to several people familiar with his appointment, Smith will work more like a U.S. attorney — managing an existing team of career prosecutors already working on cases and signing off on the evidence they provide him — rather than a de facto department head. like Mueller tapping several lawyers outside the Justice Department to start from scratch parts of the Russia investigation.
Mueller also had his own set of legal advisers, similar to the Justice Department’s shadowy appeals and policy team. According to many people familiar with the development of the office, Smith likely won’t have the same structure — with attorneys from across the department to help out as needed.
Garland has already turned to the longtime head of the criminal appellate section, Patty Stemler, who retired earlier this year from the DOJ, for advice as a consultant on the investigations on January 6 of this year.
Others from Stemler’s former department and other sections are likely to manage cases and policy matters as needed, in a departure from Mueller’s approach to preparing for difficult constitutional issues and appeals in the Russia probe, some of the sources said.
A Justice Department spokesman had no comment for this story.
Publicly released court documents have now made it clear Trump is under investigation for mishandling national security secrets after his presidency.
But the other investigative team looking into attempts to block the transition of power from Trump to President Joe Biden after the 2020 election was even given the green light by the Justice Department a year ago to take a case all the way to Trump if the evidence led them there, according to the sources. The work handled by the U.S. Attorney’s Office in Trump political circles related to Jan. 6 will now go to the special counsel.
Led in part by former Maryland-based federal prosecutor Thomas Windom, the DOJ has added prosecutors to the Jan. 6 team from across the department in recent months. Windom and the others are also expected to move to the special counsel’s office. Some, like Mary Dorman, a prosecutor who has already worked on several other Capitol riot cases, appear to be refocusing, according to court records of open Capitol riot cases.
Another top prosecutor, JP Cooney, the former head of state corruption at the U.S. Attorney’s Office, is overseeing a major financial investigation that Smith will take over. According to some sources, the investigation includes an investigation into possible misuse of political donations. The U.S. Attorney’s Office, prior to the special counsel’s arrival, had investigated potential financial crimes related to the January 6 riot, including possible money laundering and the support of hotel stays for insurgents and bus trips to Washington before January 6.
In recent months, however, the financial investigation has sought information about Trump’s post-election PAC, Save America, and other funding of people who helped Trump, according to subpoenas reviewed by CNN. The financial probe intensified as Justice Department investigators brought in associates months after the 2021 riot, one of the sources said.
In interviews with people in Trump’s orbit over the past few months, part of the Justice Department’s focus has been on the timeline to Jan. 6 and Trump’s involvement and knowledge of potential events that day, according to a source familiar with the questioning.
Trump’s allies have consistently argued that nothing Trump did in relation to the election and that January 6 itself was a crime. They also suggest that if Trump is eventually indicted, the bar for proving he committed a crime is extremely high and that jurors will hear that he received conflicting advice from different lawyers. For example, Trump allies point out, White House counsel Pat Cipollone has told Trump that Vice President Mike Pence cannot block certification of the Jan. 6 election, while Rudy Giuliani and others believe he can.
Even earlier this year, federal prosecutors specifically questioned witnesses about whether there was a plan to steal the election and keep Trump from confessing, according to a source familiar with the questions asked during this phase of the DOJ’s criminal investigation.
The DOJ investigation has evolved significantly since then, but sources familiar with grand jury testimony in recent months 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 of the relevance. from January 6.
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