As Jack Smith Faces Scrutiny, Ultimate Decision on Trump Criminal Charges Rests With Attorney General, President

The appearance by the attorneys representing President Trump at the Department of Justice on Monday suggests that a prosecutorial end game could be approaching, with a decision from Special Counsel Jack Smith close at hand. The choreography of charging the former president, though, will involve Attorney General Garland — a longtime liberal jurist whose position as the nation’s chief law enforcement official comes after a seat on the Supreme Court eluded him — and, ultimately, President Biden, America’s chief executive. Mr. Smith is expected to recommend soon criminal charges against Mr. Trump in respect of his handling, post-presidency, of classified documents that ended up at his Mar-a-Lago compound at Palm Beach.Mr. Trump’s attorneys, intuiting that any decision regarding charges in the Mar-a-Lago case will ultimately have to be given the go-ahead by Mr. Garland, have requested a meeting at the attorney general’s “earliest convenience” to discuss “the ongoing injustice that is being perpetrated by your Special Counsel and his prosecutors.”It is unclear if the appearance of those attorneys — CBS News spotted James Trusty and Lisa Hannigan entering Main Justice, at 950 Pennsylvania Avenue — was in response to that letter. CBS News added that Mr. Trump’s team met with Mr. Smith, though both his office and the DOJ have been silent on the contents of that parley. Mr. Trump, though, has not been so discreet. He posted to Truth Social that the “Marxists and Fascists in the DOJ and FBI are going after me at a level and speed never seen before in our Country, and I did nothing wrong.” He wrote of Mr. Biden, who is also under investigation for his handling of documents, that “nothing happens to him.” He added in reference to Mr. Smith, a former war crimes prosecutor, “I have a much different prosecutor, a Trump hater.” While NBC News added that neither Mr. Garland nor his principal deputy, Lisa Monaco, were at that meeting, another signal that charges against Mr. Trump could be coalescing is the convening of a second grand jury in Florida — one has for months been meeting at the District of Columbia — in connection with the documents probe.Mr. Smith, like another special counsel before him, Robert Mueller, will be guided by DOJ regulations. Part 600 of Title 28 of the Code of Federal Regulations, “General Powers of the Special Counsel,” mandates that “under the circumstances, it would be in the public interest to appoint an outside Special Counsel” in the event of a “conflict of interest” or “other extraordinary circumstances.” While the “Special Counsel shall not be subject to the day-to-day supervision of any official of the Department,” the attorney general may request that the special counsel “provide an explanation for any investigative or prosecutorial step” and could conclude that the step is “inappropriate or unwarranted under established Departmental practices.”While the “views of the Special Counsel” are accorded “great weight,” they are not inviolate. If the “Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress.” Additionally, Mr. Smith would be required to provide the “Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” Mr. Garland would then be required to report those findings to Congress, though that disclosure can be “tolled,” or paused, “upon a finding that legitimate investigative or privacy concerns require confidentiality.”If Mr. Smith reports to Mr. Garland, then Mr. Garland serves at the pleasure of President Biden. The Constitution ordains that the “executive Power shall be vested in a President of the United States of America,” who is charged — and the only one constitutionally charged — with taking “Care that the Laws be faithfully executed.” The Supreme Court has taken this to mean that the entirety of that executive power is vested in the president.While the high court held in Morrison v. Olson that special counsels — then called independent counsels — did not violate the Framers’ vision of separated powers, they did so only because the counsel did not disturb the power of the executive branch, a view shared by everyone on the court save Justice Antonin Scalia, who saw in independent counsels a grave threat to presidential prerogative.

As Jack Smith Faces Scrutiny, Ultimate Decision on Trump Criminal Charges Rests With Attorney General, President

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