New Trump special prosecutor overturned by Supreme Court, tied to IRS scandal

The special counsel named by the Biden administration to investigate Donald Trump oversaw a Justice Department unit rebuked by the Supreme Court for its prosecution of a prominent Republican and was linked by Congress to the IRS scandal that targeted conservative groups.

Jack Smith, a war crimes prosecutor in The Hague and former chief of the DOJ public integrity section, was named Friday by Attorney General Merrick Garland to take over two investigations of Trump related to Jan. 6 and classified documents found at Mar-a-Lago.

In 2014, the House Oversight Committee concluded that during Smith's earlier stint at DOJ he set up a critical meeting between his department and IRS official Lois Lerner that set in motion the targeting of conservative nonprofits that became one of the signature scandals of the Obama administration.

The Oversight Committee obtained testimony from a DOJ official named Richard Pilger in 2014 that showed Smith set up a meeting with Lerner to discuss more aggressive enforcement of regulations prohibiting tax-exempt groups from engaging in politics in the aftermath of the landmark Citizens United free speech Supreme Court case.

"According to Mr. Pilger, the Justice Department convened a meeting with former IRS official Lois Lerner in October 2010 to discuss how the IRS could assist in the criminal enforcement of campaign-finance laws against politically active nonprofits," the committee wrote in a 2014 letter to DOJ. "This meeting was arranged at the direction of Public Integrity Section Chief Jack Smith."

The letter concluded: "It is apparent that the Department's leadership, including Public Integrity Section Chief Jack Smith, was closely involved in engaging with the IRS in wake of Citizens United and political pressure from prominent Democrats to address perceived problems with the decision."

The letter, which sought a transcribed interview with Smith, was signed by then Committee Chairman Darrell Issa (R-Calif.) and Rep. Jim Jordan (R-Ohio), who is now in line to become House Judiciary Committee chairman when the GOP takes over the House in January.

The Treasury Department Inspector General ultimately concluded that the ensuing IRS pursuit of conservative nonprofits was inappropriate.

"The IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions instead of indications of potential political campaign intervention," the report concluded.

Senate and House investigators obtained emails showing Smith discussed using the FBI and IRS to possibly pursue criminal cases against conservative nonprofits in the aftermath of the Citizens United ruling, hoping to keep them from engaging on politics.

"This seems egregious to me," Smith wrote DOJ colleague Raymond Hulser in September 2010, citing a New York Times article on right-leaning tax-exempt groups. "Could we ever charge a conspiracy to violate laws of the USA for misuse of such non profits [sic]to get around existing campaign finance laws + limits? I know 501s are legal but if they are knowingly using them beyond what they are allowed to use them for (and we could prove that factually)."

Smith's tenure at DOJ also faced other controversy. He took over the Public Integrity Section in the aftermath of revelations of prosecutorial misconduct in a corruption case against Republican Sen. Ted Stevens, and he decided to drop several other pending corruption prosecutions.

But his section proceeded with the prosecution of then-Virginia Gov. Bob McDonnell, securing a jury conviction on 11 felony counts alleging the GOP governor's family accepted gifts in return for official public acts.

But the Supreme Court reversed the conviction in a stunning loss for DOJ, concluding that the definition of public acts used by Smith's team was unconstitutional and exceeded the definition in the bribery statutes.

"There is no doubt that this case is distasteful; it may be worse than that," Chief Justice John Roberts wrote in the majority opinion. "But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government's boundless interpretation of the federal bribery statute. A more limited interpretation of the term 'official act' leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court. 

"The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion."

Smith did not appear Friday for Garland's news conference appointing him as special prosecutor, but announced he was resigning immediately from his job at The Hague. In a statement, he vowed to pursue the Trump investigation fairly but aggressively.

"I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice," he said. "The pace of the investigations will not pause or flag under my watch. I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate."