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The Special Counsel Investigation Into Trump Is Moving Fast

Some legal experts think the former president could be charged in early 2023.
Former US President Donald Trump speaks at the Mar-a-Lago Club in Palm Beach, Florida, on November 15, 2022.
Former US President Donald Trump speaks at the Mar-a-Lago Club in Palm Beach, Florida, on November 15, 2022.    (Photo by ALON SKUY/AFP via Getty Images)

Special Counsel Jack Smith isn’t messing around.

The prosecutor tasked with investigating former president Donald Trump is showing so much hustle, he’s prompted former prosecutors to say Smith may be gearing up to indict Trump within the first few months of 2023. 

That’s partly due to the flurry of investigative activity following Smith’s appointment in mid-November, a time when many observers worried openly that naming a special counsel would dramatically slow the Trump investigations. Smith quickly proved those doubters wrong, filing a legal brief on Thanksgiving Day and a raft of new subpoenas, while securing testimony from top Trump associates including former White House lawyers and former Trump speechwriter Stephen Miller.

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Smith is leading investigations into the removal of highly-sensitive government documents taken to Trump’s Mar-a-Lago club in Palm Beach, as well as Trump’s attempts to reverse his defeat in the 2020 election and his role in the Capitol riot of Jan. 6, 2021.  Smith has an incentive to make a charging decision quickly, experienced criminal lawyers say: To keep any criminal trial and appeals process from stretching past the end of President Joe Biden’s term, when a new president and attorney general could stymie the process. 

“If they do decide to bring charges, they’d need to do it in the first quarter of 2023, because otherwise Trump might be able to run out the clock,” said Barbara McQuade, the former top federal prosecutor in Detroit.   

Others point out Smith is assembling a top-shelf team of hard-charging lawyers—one that appears to mean business.  

“I don’t think they would’ve left their former positions, both in government and private practice, unless there was a serious possibility that the Justice Department was on a path to charge,” Preet Bharara, the former U.S. Attorney for the Southern District of New York, told Meet The Press on Sunday

“And I think it’ll happen in a month,” Bharara said. 

Faster than Mueller

Smith has been moving faster than even his famous predecessor, former Special Counsel Robert Mueller. Mueller initially began his two-year probe of the Trump campaign’s ties to Russia without an office or a team. 

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By contrast, Smith inherited two ongoing investigations that have only appeared to ramp up since his appointment. 

That means Smith is taking over a staff that’s already almost twice as big as the team of lawyers that worked for Mueller, according to CNN

Immediately after his appointment, Smith promised: “The pace of the investigations will not pause or flag under my watch.” And so far, from all outward appearances, it hasn’t. 

In particular, he’s dropped a flurry of grand jury subpoenas on officials from six states — places where Trump’s allies attempted to secure the electoral college votes from the 2020 election that Trump would have needed to hold power. 

Smith’s team has sought both testimony and also any communications with Trump, the Trump campaign, and a list of 19 Trump associates.

This week Smith’s team subpoenaed Brad Raffensperger, the Georgia Secretary of State who took the infamous phone call in which Trump urged Raffensperger to “find” enough votes to make him president.

“All I want to do is this,” Trump told Raffensperger. “I just want to find 11,780 votes, which is one more than we have, because we won the state.”

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Raffensperger refused to do so. Instead, he tape-recorded the call, which was then leaked to the media. 

Smith has also subpoenaed officials in Arizona, Michigan, Pennsylvania, Wisconsin, and Nevada. 

On December 2nd, Smith secured grand jury testimony from Trump White House Counsel Pat Cippollone and his chief deputy, Patrick Philbin—just one day after a federal judge ordered them to appear

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And on top of all that, Smith’s team secured a key victory when an appeals court effectively annulled the appointment of a special master to review documents in the Mar-a-Lago case on December 1st.

The judges ruled that the notoriously pro-Trump Florida judge, Aileen Cannon, was wrong to accept Trump’s lawsuit in the first place. 

The ruling effectively frees up Smith to use evidence collected in the FBI’s Mar-a-Lago search in a future prosecution, during which prosecutors may want to show how highly-sensitive government documents were intermingled with random clutter by way of proving that state secrets weren’t being carefully handled.

Trump has repeatedly insisted he did nothing wrong, and that the investigations are part of a groundless “witch hunt” against him, led by his Democratic enemies. 

But legal experts watching the probes say the Mar-a-Lago documents case is theoretically  likely to be ready to move to prosecution much sooner than the sprawling investigation into the complicated events of Jan. 6th. 

That’s because the documents case is relatively simple, and many people have been successfully prosecuted for mishandling secret government documents in the past. By contrast, no past president has ever attempted to hold on to power despite losing an election in the way Trump did—which makes any attempted prosecution totally novel, and makes the legal questions involved highly complex.

“The Mar-a-Lago case is the one that is probably pretty close to being ready to go,” McQuade said.