After Mr. Trump sought an independent review of documents retrieved from Mar-a-Lago, department lawyers discussed sharing several photographs of the seized records to provide visual proof that Mr. Trump had not fully complied with a subpoena in May that required the documents’ return, according to people familiar with the situation.
Mr. Garland signed off on the decision to release a single picture of the files, some bearing high-level classification markings, arrayed on the floor of Mr. Trump’s office — now the defining image of the investigation.
He cast the appointment of Mr. Smith as voluntary, but compulsory, dictated by the section of the law that allows an attorney general to install a special counsel under “extraordinary circumstances.”
Mr. Garland appears to view Mr. Smith as more of an internal decision maker than a public buffer: The attorney general intends to follow the letter of the statute, and will most likely accept Mr. Smith’s findings unless his conclusions are “inappropriate or unwarranted” under the department’s precedents, a person familiar with his thinking said.
Already, Mr. Garland is dealing with two comparable cases, both inherited from the Trump administration, and in each he has appeared inclined to abide by the decisions of the special counsels overseeing the investigations.
Mr. Garland did not, for instance, overrule John H. Durham, appointed under Attorney General William P. Barr to investigate the F.B.I.’s inquiry into the Trump campaign’s links to Russia, when he brought two criminal cases, now widely seen as flimsy, that resulted in acquittals. He has also kept an arm’s length from the investigation of President Biden’s son Hunter by a Trump appointee, David C. Weiss, the top federal prosecutor in Delaware, even though he rejected the idea of appointing a special counsel.
Mr. Smith, who once led the department’s public integrity unit, will oversee the day-to-day operations of the documents investigation, and of the investigation into Mr. Trump’s bid to cling to power after his electoral defeat in 2020. He will decide whether to prosecute, but Mr. Garland has the power to overrule the decision. He could also produce a report, which the attorney general could choose to make public.
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