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Why a new special counsel's Trump investigations won't be like the Mueller probe


If you had too much on your plate last night, then you might have some sense of how Jack Smith may feel when he shows up to work. He is the new special counsel that the attorney general appointed just before Thanksgiving. And not only is he overseeing one of the largest investigations in U.S. history - into the January 6 insurrection - he's also handling the case about Donald Trump keeping top-secret documents at Mar-a-Lago. So how does he start to dig into this? Well, Andrew Weissmann was a senior prosecutor in former special counsel Robert Mueller's investigation. Good to have you here.

ANDREW WEISSMANN: Nice to be here on the day after Thanksgiving.

SHAPIRO: One big difference between Jack Smith's job and most other special counsel investigations is that he's not starting from the beginning, building a case from the ground up. The January 6 and Mar-a-Lago investigations have been off and running for a while now. So what does that mean for the job of this special counsel, who's stepping in kind of in the middle of things?

WEISSMANN: Yeah, so he has a number of advantages when you think about other special counsels. For one, he is not investigating a sitting president. He's dealing with a former president. So that already is a leg up because you don't have this adversarial relationship with the White House, or even at times with the Department of Justice. The person you're investigating doesn't have the ability to dangle pardons, doesn't have the ability to simply fire you. Those were things that we worried about in special counsel Mueller's investigation.


WEISSMANN: And as you mentioned, the big advantage is they're two separate investigations. And by all accounts, those are well underway. So he's not sort of building the plane and flying it at the same time.

SHAPIRO: If Smith's job is not to set the priorities or build a case from scratch, how would you describe exactly what his task is at this point?

WEISSMANN: One of Jack's strengths - I've known him for many years - is triage - figuring out what is important and what is extraneous and keeping everyone focused on what needs to be done in order to make the ultimate decision about whether a case can be brought and, maybe more important, whether it should be brought.

SHAPIRO: You know, another aspect of being a high-profile investigator prosecutor, handling a case involving Donald Trump, is that, in this era of American politics, that sets up somebody to be harassed, possibly doxxed, maybe face death threats. Do you think Jack Smith is prepared for what that might mean?

WEISSMANN: Well, having been in some high-profile matters, I don't think that there's anything that prepares you. I had thought, when I worked on the Enron Task Force, that that would prepare me for working for special counsel Mueller. And it did in certain ways, and it didn't in others because of the intensity and the vitriol that was part of that. And I think that what Jack will face and his team will make what we face in special counsel, assuming they decide to go forward in one or both cases, you know, look like child's play.

And, you know, Jack is a career prosecutor. He was the head of the Public Integrity Section at Washington that brings political cases against Democrats and Republicans, so I think those are all things that will serve him very well on the vitriol that is going to be coming his way and has already started.

SHAPIRO: Well, given what you know of Jack Smith, what kind of a special counsel do you expect him to be?

WEISSMANN: I think he's going to be very fast and very tenacious. I expect that he is going to live up to what Robert Mueller used to say when he thought that you were wringing your hands needlessly. He used to say, stop playing with your food. That's something that will never need to be said with respect to Jack Smith.

SHAPIRO: All right. Well, to keep this seasonal, I'm sure at the Thanksgiving table last night, at least one person asked you, so is Donald Trump going to be indicted? So now I'm asking you on NPR, what do you think?

WEISSMANN: (Laughter).

SHAPIRO: Is Donald Trump going to be indicted?

WEISSMANN: I mean, you know, the prediction game is always fraught with peril. You know, there are two federal investigations, and there's at least one, if not two, state investigations. So to answer the question on the federal level, I think - at least on the documents case involving Mar-a-Lago, I think that the answer is yes. And I think the timing of that remains to be seen. But I think - given that the clock is really ticking and given who Jack Smith is, I think that's going to be sooner rather than later.

SHAPIRO: That's Andrew Weissmann, professor of practice at NYU School of Law and former senior prosecutor in the Robert Mueller probe into Russian interference into American elections. Thank you very much.

WEISSMANN: You're welcome. Transcript provided by NPR, Copyright NPR.

Alejandra Marquez Janse is a producer for NPR's evening news program All Things Considered. She was part of a team that traveled to Uvalde, Texas, months after the mass shooting at Robb Elementary to cover its impact on the community. She also helped script and produce NPR's first bilingual special coverage of the State of the Union – broadcast in Spanish and English.
Ashley Brown is a senior editor for All Things Considered.
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.