NYT: Special Counsel to Resign Before Inauguration

Donald Trump once pledged that he’d take two whole seconds as president to fire Special Counsel Jack Smith. Smith has decided to get out of Dodge before giving Trump the opportunity. 

Not only does Smith plan to quit before Inauguration Day, the New York Times reports, he has told his team to find new work ASAP. The only people sticking around are those helping Smith to file his final report, as required under the special-counsel statute:

Jack Smith, the special counsel who pursued two federal prosecutions of Donald J. Trump, plans to finish his work and resign along with other members of his team before Mr. Trump takes office in January, people familiar with his plans said. …

As he prepares for his last act as special counsel, Mr. Smith’s ultimate audience will not be a jury, but the public.

Department regulations call for him to file a report summarizing his investigation and decisions — a document that may stand as the final accounting from a prosecutor who filed extensive charges against a former president but never got his cases to trial.

It is not clear how quickly he can finish this work, leaving uncertain whether it could be made public before the Biden administration leaves office. But several officials said he has no intention of lingering any longer than he has to, and has told career prosecutors and F.B.I. agents on his team who are not directly involved in that process that they can start planning their departures over the next few weeks, people close to the situation said.

Ah yes, the report. That’s what usually provides the political damage from special-counsel investigations, since so many of them don’t actually result in indictments on the core cause. That’s not going to matter as much in Smith’s probe for two reasons. 

First, Smith did indict Trump on several charges, so we already know his legal arguments. And second, as the NYT concedes sotto voce, Smith has been an unusually political figure in court and out. He has overshared, as one could say, about his investigation, which seemed unusual at the time for a prosecution, but perfectly suited to a lawfare model aimed at convincing voters to choose someone else in the election:

Mr. Smith, who has been the subject of round-the-clock protection after receiving death threats since taking over, has already described much of the evidence and legal theories behind the election obstruction indictment. Since he filed two separate and lengthy indictments last year against Mr. Trump, he has supplemented that record with scores of court filings elaborating on the allegations.

Editorial question: what does the subordinate clause in the lead sentence of this paragraph have to do with the subject of it? This discusses why the report is likely to be a yawner in terms of new information, but the NYT decided to drop in the “death threats” mention, which could have gone anywhere in this report. Why? To distract from the topic of the paragraph, which is that Smith doesn’t really have much to add to the public record? 

Moving on, and speaking of moving on, one has to wonder exactly when Smith will resign. He’s due in court on December 2 to instruct the court on his plans to wind down the cases. He’ll have to give Merrick Garland the report before leaving office but after he’s done with court appearances, so that leaves about a seven-week window. The problem is that Garland will have to submit that report for a review before it can be released so that certain sources-and-practices info can be redacted. That took several weeks with the Robert Hur report on Joe Biden’s classified-material probe, and would likely have the same issues as that did and more. 

Garland will have to be Attorney General to release the report, but can the DoJ get that done in time? Or will the incoming AG decide to punish lawfare and spike it? Smith will have to resign soon and submit the report for any hope of it being made public.

Or maybe he won’t have to worry much about that at all. House Republicans have already instructed Smith and his team to preserve all records for a congressional investigation into their handling of this special-counsel probe and whether they were part of a conspiracy to influence the election. Smith might be best advised to quit while he’s behind — and Garland, too.