Trump allies push to punish Jack Smith in first test of retribution vow

Even as Jack Smith moved to wind down his federal election interference case against Donald Trump on Friday, House Republicans took an initial step toward investigating the special counsel, setting up an early test of how the president-elect’s calls for retribution will play out.

House judiciary chairman Jim Jordan (R-Ohio) and House administration oversight subcommittee chairman Barry Loudermilk (R-Georgia) asked Smith’s office to preserve all records of the historic classified document and election interference probes, a routine first step in congressional inquiries, law enforcement investigations and litigation. Elon Musk, the X owner who spent more than $100 million boosting Trump’s campaign, responded to the House Republicans’ letter by posting, “Jack Smith’s abuse of the justice system cannot go unpunished.”

Trump vowed repeatedly on the campaign trail to stop Smith’s prosecutions and use a return to power to turn federal law enforcement against President Joe Biden and other critics, Democrats and former advisers. He argued without evidence that the federal indictments he faced were politically motivated. In the final weeks of the campaign, Trump said he would quickly remove Smith and suggested deporting him.

“He should be thrown out of the country,” Trump said Oct. 24 on “Cats & Cosby,” a conservative radio talk show.

A Trump adviser, who spoke on the condition of anonymity to detail the president-elect and his team’s thinking, said Trump and his team would react extremely poorly if Smith tries to do anything else publicly. The next Department of Justice will look “critically” at what Smith’s team did over the past couple of years to “make sure nothing like this ever happens again,” the person said.

The adviser said that Trump has shown a particular interest in who becomes attorney general because of the cases, and he wants “vindication” on all of them. The person said that it would be unlikely a Trump Justice Department would want to employ prosecutors from Smith’s office who investigated Trump.

Smith’s team included veteran national security prosecutors who had spent years at the Justice Department. They secured grand jury indictments charging Trump with hoarding classified documents after leaving the White House and obstructing government efforts to retrieve them, and illegally trying to overturn Biden’s 2020 election victory.

Spokesmen for Musk and Trump did not respond to requests for comment.

Since this week’s election, Smith has signaled that he plans to wind down the cases against Trump and focus on completing a final report to Attorney General Merrick Garland, rather than pushing ahead with the prosecutions until the inauguration and forcing a confrontation with the incoming administration.

Smith is assessing how he wants to proceed with the case now that Trump is expected to be sworn in as president on Jan. 20, the special counsel and his team told a federal judge in a filing Friday. Justice Department policy would not allow for the prosecution of a sitting president. U.S. District Judge Tanya S. Chutkan responded by granting Smith’s request to suspend all remaining deadlines in the case Friday.

Jordan and Loudermilk’s letter to Smith suggested that Smith’s office could respond to the election by purging records, warning, “The Office of Special Counsel is not immune from transparency or above accountability for its actions.” The lawmakers, both staunch Trump supporters, repeated an early request for Smith to turn over records about his communications with Garland, his hiring decisions and the court-approved search of Trump’s Mar-a-Lago estate in August 2022.

Trump’s attorneys have criticized Smith’s prosecutions as unjustified and political in legal filings, but have not alleged that he committed a crime.

A spokesman for Smith declined to comment.

Even though Justice Department policy offers no path for the federal probes to continue, Trump adviser Mike Davis seized on Smith’s efforts to wind them down in the wake of Trump’s victory as evidence of “election interference.”

Davis said he hopes the multiple branches of the government go after Smith. “There should be several investigations: House Judiciary, Senate Judiciary, DOJ Office of Professional Responsibility and a criminal probe,” he said.

The pressure on Smith resembles Trump’s and his allies’ previous drives to retaliate against criminal and congressional investigations of Trump.

The GOP has largely followed the playbook of examining and interrogating investigators’ methods over the past two years to discredit and undermine prosecutors who have brought charges against Trump. House Republicans also demanded recordings from the district attorneys in Manhattan and Atlanta who separately prosecuted Trump, and from former special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 election.

When Republicans won the House in 2022, Trump wanted them to reopen the work of the bipartisan House committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol. Then-speaker Kevin McCarthy shared additional surveillance footage with a documentary team led by right-wing host Tucker Carlson.

The threat to Smith is different, however, because the Trump administration is likely to cooperate with undermining him, said to Philip Allen Lacovara, a former deputy solicitor general and special counsel to the Watergate special prosecutor. Historically, Lacovara said, the Justice Department has resisted congressional second-guessing of its investigations, arguing that the agency has to protect the executive branch’s independence and the secrecy of grand jury materials.

“This administration, however, I suspect will be quite willing to disregard the traditional Justice Department protections for the integrity of investigations and will basically pull down their trousers and expose everything Smith did as part of their effort to blacken the investigation,” he said. “The gloves are off in Congress, and I suspect whoever is appointed attorney general by President Trump will not have the same institutional commitment to the autonomy and integrity of the Justice Department as even the leadership during Trump I.”

But Democrats in Congress on Friday welcomed Jordan’s missive, arguing that laying bare Smith’s work will only highlight wrongdoing by Trump. Democratic staffers involved with congressional investigations said it’s likely that Jordan and committee investigators will call on Smith to testify, as they have in the past, as a part of the investigation - a prospect they welcome.

“That’s exactly the hearing Democrats would have had in the majority,” one of the staffers said. “Why would you call in Jack Smith to do the trial of the century but in Congress? It’s a gift to Democrats. … Call him in three times. That seems great.”

In their filing to Chutkan on Friday, Smith’s team said they needed to assess how to proceed with the case, which accused Trump of trying to interfere with the 2020 election results, now that he is returning to the White House.

Chutkan quickly granted that request and ordered prosecutors to file a report by Dec. 2 explaining how they want to proceed.

The case is still far from a potential trial, and Chutkan is determining what allegations in the superseding indictment may still be prosecuted after the Supreme Court ruled this summer that presidents enjoy broad immunity.

Smith also indicted Trump in Florida for allegedly mishandling classified documents and thwarting officials’ attempts to retrieve them. That case was dismissed by a Trump-appointed federal judge, who broke with legal precedent to find that Smith was unlawfully appointed.

Smith is appealing that ruling, but Trump’s return to power could affect that effort as well.

Smith’s options include preparing a final report for public disclosure or dismissing both cases so that they can be revived after Trump’s second term ends, said Barbara McQuade, a law professor at the University of Michigan and a former federal prosecutor.

If he terminates the criminal cases soon enough, Smith could deliver a final report detailing the findings of his two probes to Garland before Trump becomes the next president. A final report would allow Smith to “share with the public his evidence of Trump’s crimes,” McQuade said. “Members of Congress should be careful what they ask for.”

Smith could then resign as special counsel before Trump has a chance to make good on his promises to fire him.

Garland has previously said that he would make special counsel reports public if they reached his desk, though he has not indicated specifically what he would do if Smith gave him such a report now.

Were Smith to press forward into a Trump administration, the president or his attorney general could fire him and order the Justice Department to drop the prosecution.

Trump also faces two criminal cases in state courts in New York and Georgia. In May, a New York jury convicted Trump of 34 felony counts of falsifying business records to conceal a hush money payment to an adult-film actress. He is appealing that conviction and attempting to get his November sentencing postponed.

In Georgia, Trump faces charges related to his attempts to overturn the 2020 presidential election results in the state. That case has been on pause for months after Fulton County District Attorney Fani T. Willis was accused of having an inappropriate romantic relationship with an outside lawyer she hired to lead the prosecution.

Even if the Georgia case does move forward, it probably won’t go to trial for years - if at all.

The Justice Department has long held that the constitution’s separation-of-powers principle bars a president from being prosecuted while in office. Legal experts say those guidelines would probably extend to state cases.