Lawyers for former President Donald Trump on Tuesday requested a meeting with U.S. Attorney General Merrick Garland over the work of a special counsel who is handling two investigations into the former president.
“No President of the United States has ever, in the history of our country, been baselessly investigated in such an outrageous and unlawful fashion,” attorneys John Rowley and James Trusty wrote in a letter dated May 23 and addressed to Garland. Trump posted the letter on Truth Social, his social media platform, late Tuesday.
As the Trump team’s latest response to one of Trump’s legal challenges, the former president’s lawyers asked for a meeting with Garland “at your earliest convenience to discuss the ongoing injustice that is being perpetrated by your Special Counsel and his prosecutors.”
Garland appointed special counsel Jack Smith in November 2022—days after Trump announced his candidacy for 2024—to handle two investigations: one into Trump’s handling of classified documents at his Mar-a-Lago property and another into Trump’s alleged interference with the transfer of power after the last presidential election.
Smith, who pledged an expeditious investigation as special counsel, is operating in a nominally independent manner from the DOJ to avoid a perceived conflict of interest. He can choose to recommend charges after his investigation.
“As special counsel, [Smith] will exercise independent prosecutorial judgment to decide whether charges should be brought,” Garland said in a statement when he appointed Smith last November.
A spokesperson from Smith’s office declined to comment.
Recent DOJ-appointed special counsels include Robert Mueller, whose work led to the guilty plea of former national security adviser Michael Flynn in 2017, and John Durham, who probed the origin of the FBI’s investigation into alleged collusion between Trump and Russian entities during the 2016 elections.
Both of Smith’s investigations are conducted behind closed doors. Trump’s attorneys did not specify which investigation they are seeking to discuss with Garland.
The special counsel probes are two of the former president’s four legal challenges—ongoing investigations or proceedings—that carry a potential criminal liability. The other two include an indictment on money Trump allegedly paid to adult entertainment actress Stormy Daniels and potential charges out of a special purpose grand jury investigation related to election interference in Georgia.
According to Anthony Coley, a former spokesperson for Garland, it is unlikely that the top DOJ official will grant the request of Trump’s lawyers.
DOJ regulations “are explicitly clear on the process here. Jack Smith is running this investigation, not Garland,” Coley wrote in a post on Twitter.
The regulations say that Smith “is not subject to the day-to-day oversight of any person” at the DOJ, and that Garland could intervene if “Smith takes an investigative or prosecutorial step outside DOJ norms.”
The 2020 Elections Probe
In Trump’s case, Smith has been looking into “whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or with the certification of the Electoral College vote held on or about January 6, 2021,” according to a DOJ statement published in November 2022.
One aspect of Smith’s case could include a potential incitement charge against Trump, Jared Carter, a professor at Vermont Law School, told The Epoch Times in an interview.
Trump told his supporters at the “Save America” rally near the Capitol on Jan. 6, 2021, to “peacefully and patriotically make your voices heard” in challenging the result of the 2020 election that Trump said he had won by a landslide.
He also said, “We fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.”
According to Carter, the incitement charge would be difficult for Smith to bring because of the First Amendment’s broad protection of speech.
“One exception to the First Amendment protection of speech is for incitement, and there’s a very specific test that the courts use in determining whether something constitutes incitement,” Carter said, in reference to the Brandenburg Test, which allows states to forbid actions that are directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
“That’s a high burden for the government to meet—and, I think, rightfully so—we want robust political speech,” Carter said. “We don’t want politicians to self-censor.
“The upshot is: courts are generally going to be reticent to criminalize speech,” the professor added. “So, I think from a pure First Amendment perspective, an incitement charge for the speech on Jan. 6 is going to be a difficult case for a prosecutor to bring.”
Classified Documents Investigation
Smith is also probing Trump’s retention of classified documents at his Mar-a-Lago estate in Florida after leaving office in January 2021, and whether he tried to obstruct the Justice Department’s investigation.
On February 9, 2022, the National Archives and Records Administration (NARA) made a referral to the DOJ that led the federal agency to launch a criminal investigation into the former president’s handling of classified documents.
That investigation spawned the FBI raid at Trump’s Mar-a-Lago resort last August, followed by the court’s publication of the FBI’s search warrant (pdf), giving clues as to what charges may arise from the former president’s alleged mishandling of classified documents.
They include 18 U.S.C. §793—mishandling defense information, §1519—record alteration or destruction with the intention to obstruct an investigation, and §2071—alteration or destruction of public records.
In an August 30, 2022, court filing (pdf) following the raid, the DOJ said it sought the classified documents by issuing a grand jury subpoena in May 2022. The department alleged that after the subpoena was issued, Trump “concealed and removed” government records and that “efforts were likely taken to obstruct the government’s investigation,” leading to the department’s application for a raid.
Trump, in statements made on Truth Social, defended his conduct by saying that the documents were protected by executive privilege, or the inherent presidential privilege to withhold information from the public; the presidential authority to declassify documents; and attorney-client privilege.
Smith took over this investigation when he was appointed DOJ special counsel in November 2022.
According to trial attorney John O’Connor, Smith could shape the case around a charge involving an obstruction of justice which would require proving Trump’s intention to knowingly affect the availability or quality of evidence during an official investigation.
“If the government can prove that Trump took efforts to hide documents from the government, in order that the government does not seize them, then there is a potential obstruction of justice, and false statements charge against Trump,” O’Connor told The Epoch Times in an interview.
“So, the proof in that pudding would have to be some statement by an underling that Trump told him or her to move documents in order to hide them from authorities,” he added. “And if any of them say, ‘Yes, Trump told me that he didn’t want this or that classified record seized, and he wanted me to bring it to another room or put it in a separate box,’ or something like that–I think you’ve got a cross.
“If I were Jack Smith, that’s where I would go on this,” O’Connor said. “I would talk to the underlings, a lot of whom, apparently, are talking.”
Notably, the DOJ has appointed a special counsel to conduct a parallel investigation after finding classified records at President Joe Biden’s home and the Penn-Biden Center in Washington.
But according to O’Connor, the political leanings of the prosecutors mean that the agency would treat the two cases differently.
“I suspect that there will be a soft-ball handling of [the Biden] documents case, even though to me, it seems pretty clear that he had the motive to keep the very important documents he kept, which were presidential briefing,” the attorney said. “They’re the best and juiciest classified documents one can get.
“I’m convinced that his greatest vulnerability is at the Mar-a-Lago situation,” O’Connor said of Trump.
Reuters contributed to this report.
From The Epoch Times