With America on another “indictment watch” for former President Trump, there is rampant speculation about what Special Counsel Jack Smith will do, when will he do it. and who else besides the former president could be charged in connection with an alleged conspiracy to overturn the 2020 election and illegally keep Trump in office.
A USA TODAY review of how Smith operates suggests that it’s anybody’s guess as to what will transpire, and on what timeline. The intense former Justice Department and war crimes prosecutor is notoriously close to the vest when it comes to revealing his hand, former colleagues say. And while he is not afraid to take on big targets, they add, he will take his time and bring a case only when he knows it’s ready, when he knows he’ll win it and when he’s certain it will survive all manner of appeals and legal trickery.
In fact, he’s already filed charges against Trump − and a sitting president, Hashim Thaci of Kosovo, in 2020, at the time a popular U.S.-backed head of state whom Smith was investigating as chief prosecutor for a special war crimes tribunal court in The Hague. On Thursday, Smith leveled new charges against Trump in that unrelated case, including a new allegation that Trump sought to delete surveillance video at his Mar-a-Lago estate, and an indictment of a second Trump aide for obstruction of justice in the hoarding of classified information.
“I’ll guarantee you that the only person who knows what Jack’s going to do is Jack, and maybe a few other people on his team who have worked closely with him to build this case from the beginning,” David Schwendiman, a former senior Justice Department official who preceded Smith on the Kosovo war crimes case, told USA TODAY.
More:Who is Jack Smith, the special counsel appointed to lead Trump investigations?
There’s something else Smith learned during his years prosecuting high-profile cases, especially the one against Thaci, a politically powerful European leader accused of orchestrating vicious atrocities during the Kosovo war in the late 1990s, Schwendiman said.
Like the current case, it was a given when Schwendiman handed over the ongoing Kosovo prosecution to Smith that the political pressure on him − both to secure an indictment as well as not to bring one − was enormous. It was also a given, Schwendiman said, that it could end Smith’s career if he allowed even the tiniest glitch in a complex case with global implications.
Smith and his team went dark for months. Ignoring scrutiny and speculation from all sides, he kept his investigative strategy so closely held that it wasn’t until Smith unveiled his charges, Schwendiman said, that it became apparent how – and with what evidence – he planned to win his case.
“You don’t bring cases like this because somebody wants you to, you only act when you’ve got the evidence you need to be confident you will convict,” Schwendiman said in describing Smith’s thinking. “And you don’t go after the king unless you’re ready to do whatever it takes to do it, and to do it right.”
Thaci’s trial is ongoing.
When could Trump be indicted, and for what?
Given Smith’s well-known penchant for secrecy, it’s hard to tell when Trump will be indicted, for what and importantly, who will be indicted along with him.
What is known is that Trump himself said he received a “target letter” from Smith and the Justice Department based on evidence that prosecutors have brought before grand juries sitting in Washington and south Florida.
The target letter reportedly notifies Trump that he faces at least three criminal felony charges relating to the events on and before Jan. 6, 2021, when pro-Trump rioters stormed the U.S. Capitol and stopped Congress from certifying Joe Biden’s electoral college win and initiating the orderly transfer of power.
Numerous prosecutors and legal analysts have told USA TODAY that such target letters are a virtual guarantee that the grand jury hearing evidence in the case will hand up some form of indictment to a federal judge, which results in the charges being brought. After that, Trump would be arraigned, enter a plea of guilty or not guilty and preparations for a trial would commence. That’s what is already happening in the two other instances in which Trump has been indicted; the special counsel’s federal classified documents case and the Manhattan district attorney’s “hush money” case.
Trump has pleaded not guilty in those cases and has said he did nothing wrong in connecting with fighting his November 2020 election loss.
A grand jury being used by Smith is meeting in Washington today, and could potentially vote to hand up an indictment. It’s even possible − but not likely − that it already has voted to indict and the indictments are under seal. Also, some of Trump’s lawyers met Thursday morning with lawyers from Smith’s special counsel team to discuss the case, but that’s pro forma for someone who has received a target letter.
Trump said in a post on Truth Social later Thursday that his lawyers weren’t told an indictment is imminent.
“My attorneys had a productive meeting with the DOJ this morning, explaining in detail that I did nothing wrong, was advised by many lawyers, and that an Indictment of me would only further destroy our Country,” Trump said. “No indication of notice was given during the meeting — Do not trust the Fake News on anything!”
There are other factors also suggesting that indictment might be days, or even weeks, away.
Smith is still scheduled to meet with several key witnesses, including Trump lawyer Boris Epshteyn and Bernard Kerik, the former New York City police commissioner and aide to Trump lawyer Rudy Giuliani in his effort to find more votes for Trump following his loss to Biden. Kerik’s lawyer, Tim Parlatore, has been arranging for Kerik to meet with Smith’s prosecutors for a voluntary interview sometime in August. Giuliani already has done a similar interview.
It’s worth noting that prosecutors can continue to investigate a case, especially an allegedly wide-ranging one such as this, after an indictment is returned.
Smith’s special counsel office also continues to follow multiple strands of its wide-ranging investigation. That includes interviewing new witnesses and collecting new evidence. Kerik, for instance, recently gave the prosecution teams hundreds of documents pertaining to his and Giuliani’s efforts to investigate allegations of fraud after the election, especially in critical swing states that gave Biden his margin of victory.
What do we know about the charges?
According to Trump and the target letter he said he received, the former president could face a charge of conspiracy to defraud the United States, which gives prosecutors extremely wide latitude in deciding how to prosecute Trump and suspected co-conspirators for allegedly teaming up after the election to overturn its results. “They can use that charge to practically whatever they want in this case,” said former federal prosecutor Gene Rossi.
Another charge in the target letter Trump says he received appears to focus on obstruction of an official proceeding, presumably regarding the orderly transfer of power that was temporarily halted by a mob of Trump supporters at the Capitol on Jan. 6, 2021. And a third reportedly involves a post-Civil War civil rights statute that makes it a crime for people to conspire to threaten or intimidate others from exercising their rights under the Constitution and federal law.
More:What is a target letter? What to know about the letter Trump received in Jan. 6 investigation
Those two also give prosecutors a lot of leeway for deciding who to prosecute and on what charges related to alleged election fraud. But that’s especially the case with the “conspiracy to defraud” charge, former prosecutors and other legal analysts told USA TODAY.
Many criminal conspiracy cases are structured like a pyramid, with the coordinator of the alleged scheme at the top and increasingly widening layers of co-conspirators underneath them that are directly involved. That kind of case is often brought against heads of mafia families and drug cartels, said former federal prosecutor Glenn Kirschner and other legal analysts.
But they told USA TODAY that Trump is far likely to face charges on what is known as a “hub and spoke” conspiracy, in which there is one person who is linked to various illegal schemes that don’t necessarily intersect with each other − much like the spokes on a bicycle wheel. All of them are connected to the hub of the conspiracy, in this case Trump and perhaps some close associates, with the various schemes outlined by Congress’s Jan. 6 committee being the spokes emanating outward from him, Kirschner said.
A potentially large group of Jan. 6 co-conspirators
If Smith brings that kind of conspiracy case, the possibilities of who else might be charged are wide open. Trump’s former White House director of trade and manufacturing, Peter Navarro, openly boasted about scheming to delay certification of Biden’s 2020 election with the help of longtime Trump adviser Steve Bannon. In Navarro’s 2021 book, “In Trump Time,” he referred to it as operation “Green Bay Sweep” and said it was the “last, best chance to snatch a stolen election from the Democrats’ jaws of deceit.”
Navarro, who has denied wrongdoing, said in a later interview that Trump was “on board with the strategy,” according to the Jan. 6 committee.
But there are at least six other potential conspiracies involving Trump, according to legal analysts and the Jan. 6 committee, which referred three charges to the Justice Department for criminal prosecution based on its 18-month investigation and series of public hearings.
More:‘Somewhat dicey’ and ‘problematic’: Inside Trump’s bid to have fake electors overturn 2020 election
One was Trump’s alleged effort to steal or illegally obtain votes in several states, notably in Georgia, where he called Secretary of State Brad Raffensperger and demanded that he help him “win” Georgia: “So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have, because we won the state,” Trump said on the call, which also included aides and lawyers.
Another scheme involved cultivating fake electors in at least four swing states in an effort to illegally replace the electoral college votes legitimately given to Biden because of his wins in those states’ popular vote.
There is Trump’s alleged conspiracy with Justice Department official Jeff Clark to have DOJ investigate alleged election fraud that didn’t exist. And there is Trump’s unrelated effort to pressure then-Vice President Mike Pence to refuse to certify the election, which Pence refused.
Trump also faces potential liability over his efforts to raise millions of dollars by lying about losing an election he knew Biden had won. And last but certainly not least, according to the Jan. 6 committee and legal analysts, were Trump’s efforts to send his supporters to the Capitol on Jan. 6 and stop Congress from certifying the election.
What do Smith’s other cases say about what might happen?
Schwendiman, Smith’s former Justice Department and war crimes tribunal colleague, says he is a meticulous workaholic who likely has played a “24 hours a day, seven days a week hands-on role” in all aspects of the case against Trump since his Nov. 18, 2022 appointment by Attorney General Merrick Garland, just days after Trump announced he was again running for president.
Before Smith became the first federal prosecutor to indict a former U.S. president, he was known for rebuilding the Justice Department’s reputation for toughness and fairness in public corruption cases, after a series of setbacks, including a case against former Alaska Sen. Ted Stevens that blew up in DOJ’s face which was tossed out after a judge found prosecutors intentionally hid evidence that could have helped Stevens’ defense.
More:Trump prosecutor Jack Smith built reputation in corruption case of ex-lawmaker from Arizona
Smith’s doggedness as the head of DOJ’s Public Integrity Section ended the political career of former Rep. Rick Renzi, R-Ariz. But after the unit convicted former Republican Virginia Gov. Bob McDonnell in a 2014 bribery case of taking more than $170,000 in loans and gifts, the Supreme Court unanimously overturned it, saying the government adopted an overly loose definition of bribery. The unit under Smith also lost a high-profile case involving former senator and Democratic presidential candidate John Edwards.
Lanny Breuer, the assistant attorney general who was Smith’s boss at the Justice Department, described him as a completely apolitical prosecutor who is fastidious in his investigations, and impervious to pressure.
“I sought him out when I thought the Public Integrity Section and the Criminal Division needed new leadership, dynamic leadership. And he gave me that and more,” Breuer told USA TODAY. “I obviously had absolutely nothing to do with this (current special counsel) appointment. But when I heard it, I thought that there is no better person to do this tough job.”
“If there’s a case to be brought, he’ll bring it. If there’s a case not to be brought, he won’t bring it,” Breuer said. “And I don’t think that any navel gazing or predictions about what he’s going to do is going to make any difference whatsoever to him.”
Smith is nothing if not ambitious, said Paul Rosenzweig, a former federal prosecutor and senior counsel on the Whitewater investigation of President Bill Clinton.
“There are something like six different conspiracies here, including stealing votes in Georgia and Nevada, the fake electors scheme, pressuring Mike Pence to act illegally, raising money from the rubes lying about the lost election and starting a riot to take over Congress,” Rosenzweig said. “Smith is going to pick the one or two that he can prove best, and by that I mean where there are really good links to Trump directly.”
“So far, his process seems solid,” Rosenzweig added. “But he’s also the guy who lost the big Bob McDonnell case, so we’ll see.”
