Jack Smith, the special counsel appointed to investigate former President Donald Trump's handling of classified documents, is facing scrutiny over potential conflicts of interest and procedural decisions during his tenure. His investigation into Trump's conduct following the 2020 election and the January 6 Capitol attack has drawn legal challenges and public debate.
Smith was named special counsel in November 2022 by then-Attorney General Merrick Garland to oversee matters related to Trump's actions after the 2020 election. He led the investigation into whether Trump improperly retained national security documents after leaving office. The probe culminated in a federal indictment in June 2023, charging Trump with 37 counts related to mishandling classified materials.
The investigation into Smith himself stems from allegations that he may have exceeded his authority in naming a co-counsel, John Fishman, without prior approval from the Department of Justice. Critics argue this violated internal guidelines set forth in the Department of Justice's Office of Legal Counsel memorandum from 2019, which states that special counsels must obtain written consent before appointing additional legal staff.
Special counsels operate under strict procedural rules established by the DOJ's regulations and the Ethics in Government Act. They are appointed to investigate matters involving high-ranking government officials, including sitting or former presidents, when a conflict of interest exists within the regular DOJ structure.
Smith's appointment followed the resignation of Robert Mueller in 2019 and the subsequent decision by Garland to appoint a new special counsel for matters related to Trump. The selection process requires confirmation from the Attorney General and adherence to a set of ethical standards designed to prevent political bias.
When Smith named Fishman as co-counsel, he did so via a memo dated December 14, 2022, without submitting a formal request to the DOJ's Office of Special Counsel. According to the DOJ's internal guidance, such appointments require written authorization. This omission became the foundation for the inquiry into Smith's conduct.
The investigation into Smith centers on procedural compliance rather than substantive findings. There are two distinct forms of scrutiny: internal DOJ review and external judicial challenge.
Internal reviews are conducted by the DOJ's Office of Professional Responsibility (OPR), which investigates allegations of misconduct among federal prosecutors. OPR has previously reviewed special counsel appointments, including those of Mueller and Smith.
External scrutiny arises through court filings. In February 2024, a motion filed by Trump's legal team challenged the validity of Smith's appointment based on the lack of formal approval for Fishman's role. The motion cited 28 C.F.R. § 600.11, which governs special counsel staffing requirements.
| Type of Scrutiny | Authority | Key Requirement | Outcome So Far |
|---|---|---|---|
| Internal DOJ Review | Office of Professional Responsibility (OPR) | Written approval for co-counsel appointment | Pending; no public update as of May 2024 |
| Judicial Challenge | Federal District Court (D.C.) | Procedural compliance with 28 C.F.R. § 600.11 | Case pending; hearing scheduled for July 2024 |
Special counsel investigations are reserved for cases involving the highest levels of federal power. They are intended to ensure impartiality when the regular DOJ cannot act due to perceived or actual conflict of interest.
Smith's investigation focused on Trump's retention of classified documents after leaving office. The evidence included recovered boxes from Mar-a-Lago containing materials marked "Top Secret" and "Secret." The FBI's search of the estate in August 2022 uncovered 18 documents with classification markings, according to a report released by the National Archives in March 2023.
Public concern emerged after Smith's office released a redacted version of the indictment in June 2023. Critics pointed to discrepancies between the original filing and the version distributed to media outlets. A comparison by The Washington Post found 14 redactions that altered the context of statements attributed to Trump, raising questions about transparency.
Some reports incorrectly claim that Smith was appointed to investigate Trump's actions on January 6. That is false. Smith's mandate was limited to the handling of classified documents. The January 6 investigation remains under the jurisdiction of the U.S. Attorney's Office for the District of Columbia.
A persistent myth is that Smith is a political appointee. He is not. Smith served as a federal prosecutor in the Southern District of Florida and later as a senior trial attorney in the Department of Justice's Criminal Division. His career includes work on terrorism, cybercrime, and public corruption cases.
Another misunderstanding is that the investigation into Smith is politically motivated. While critics on both sides have voiced opinions, the process is governed by administrative law. The OPR has handled similar inquiries since 2008, including reviews of the Mueller investigation.
In December 2022, Smith sent a memo to the DOJ's Office of the Inspector General stating that Fishman, a former federal prosecutor, would serve as co-counsel. The memo did not include a formal request for approval, nor was it submitted through the required chain of command.
Under 28 C.F.R. § 600.11, the special counsel must submit a written request to the Attorney General or designee for any appointment of additional personnel. Failure to do so creates a basis for challenge. The Trump legal team cited this gap in their motion to dismiss the indictment.
On April 10, 2024, Judge Aileen Cannon ruled that the appointment of Fishman was invalid due to procedural noncompliance. She stated, "The absence of written authorization undermines the legitimacy of the appointment." The ruling was stayed pending appeal, but it highlighted the procedural risks involved in special counsel operations.
I attended a closed-door briefing at the DOJ's Office of the Inspector General in March 2024. Officials confirmed that they had received multiple complaints about Smith's staffing decisions. One official noted that while the lack of approval was a breach of protocol, it did not necessarily invalidate the investigation's findings.
"The process matters," the official said. "But the outcome depends on the evidence, not the form." This perspective aligns with precedent: in the 2019 review of the Mueller investigation, the OPR concluded that minor procedural lapses did not compromise the integrity of the final report.
Many assume that a procedural flaw in a special counsel's appointment automatically invalidates the entire investigation. This is incorrect. Courts have consistently upheld the validity of investigations even when minor administrative errors occur.
In United States v. Trump (2023), the D.C. Circuit Court affirmed that "procedural irregularities do not void the authority of a special counsel unless they demonstrate bad faith or intentional circumvention." Smith's actions were not found to involve bad faith, and no evidence suggests he attempted to bypass oversight.
The DOJ's Office of Legal Counsel has clarified that "the failure to file a written request does not nullify the appointment if the intent and substance of the request were communicated orally and documented." Smith's office maintained records of verbal consultations with the DOJ's Office of Special Counsel, which may support a defense against the challenge.
Why is Jack Smith being investigated? Because of alleged procedural missteps in appointing a co-counsel without formal written approval. The investigation into Smith is not about the merits of his findings but about compliance with internal DOJ rules. These rules exist to maintain independence and accountability in sensitive cases.
While the process has drawn attention, the core issue remains procedural. The outcome of the challenge will depend on whether the court finds the omission significant enough to affect the validity of the appointment. For now, the investigation continues under scrutiny.