The documents case, which Trump has tried to shrug off as a partisan spat over paperwork, would not be an easy prosecution, either, but it is a lot more straightforward, and hence more dangerous to him in the immediate future.
The government has already made it clear that it is focused on two primary possible charges, the mishandling of sensitive national security documents under the Espionage Act and obstruction of justice. One of the biggest decisions Smith is likely to face, people close to the situation have told me, would be whether to charge Trump with both — or focus on obstruction alone, with the Espionage Act as background music.
It’s also possible prosecutors would bring a case alone on the mishandling of documents. But that could be problematic, especially if there is no evidence that any of the material Trump possessed actually hurt the country.
Moreover, it is unlikely the department would have embarked on a high-risk criminal investigation if Trump had effectively said, “My bad,” and returned everything he had taken when the government issued a subpoena in May.
Trump is running for president again, but he appears pretty wounded after his candidates did poorly in the midterm elections. Does that affect whatever pressure Garland might be under from Democrats to indict Trump? That is, if he’s politically weak, maybe there’s less of a sense on the left that he’s a real threat to become president again.
Two things seem certain. Democrats are going to want Garland to indict Trump whether he is the front-runner or polling below Asa Hutchinson. Politically, you could make the case that charging Trump would create a backlash that could help him. And Garland is going to say that he is paying zero heed to politics.
Enter Jack Smith, who provides Garland with thin, but not negligible, cover.
While Garland technically has the ultimate say over both cases, his power is one of negation. He can reject Smith’s final recommendations, but under the special counsel regulation, he must inform Congress that he is opposing the man he picked, so it seems pretty unlikely that Garland would reject Smith’s work unless something really crazy happens.