New book details tensions, history-making decisions during Trump cases
After a federal judge dismissed an indictment against Donald Trump last year, special counsel Jack Smith mounted an appeal, hoping to salvage the criminal case against the once and future president.
Trump had been charged with illegally retaining classified materials and obstructing government efforts to retrieve them. The case was considered by many legal observers and Trump’s own advisers to be the strongest of four he faced.
Smith said U.S. District Judge Aileen M. Cannon, a Trump appointee with limited experience, had ignored decades of precedent in dismissing the case outright and urged an appeals court to reverse her decision. He had also wanted to take an even more dramatic step, according to a new book, by trying to get Cannon tossed off the case entirely.
But when a senior Justice Department official in the Biden administration rebuffed Smith’s desire to have Cannon pulled, the special counsel chose not to press his case with Attorney General Merrick Garland. “If Garland turned him down,” the authors write, “it would have to be reported to Congress.”
The episode was one of several times disagreements and tensions over significant decisions bubbled up to the highest levels of federal officials during the historic, pressure-filled investigations into Trump that unfolded between his presidential terms, according to “Injustice,” which published Tuesday by Carol D. Leonnig and Aaron C. Davis, two longtime Washington Post journalists. (Leonnig left the publication this year and joined MSNBC.)
Garland had appointed Smith special counsel in November 2022, after Trump had launched his third presidential campaign and with President Joe Biden saying he planned to run again. At the time, some of Smith’s former colleagues at the Justice Department praised him as a dogged and fearless prosecutor.
Trump and his allies frequently castigated Smith, with the then-former president calling him “deranged.” Smith remained largely silent publicly during his time as special counsel, generally communicating with the public through court filings.
When Smith took over the federal investigations into Trump’s handling of classified materials and efforts to undo his loss in the 2020 presidential campaign, he had been working as a war crimes prosecutor at The Hague. After making his way stateside for his new job overseeing both cases, Smith soon grated on some of the staffers working for him, requiring advance lists of all questions before witness interviews and telling some attorneys how to question people, according to the book.
He increasingly consulted “privately with his trusted inner circle” and “largely left other attorneys on both teams in the dark,” the authors write. One observer described a seeming bubble around Smith as “the Cult of Jack.”
“Smith was a one-way street, demanding information but sharing it with his teams sparingly or not at all,” the authors write. “Smith’s insular and siloed management style ruffled some feathers; his methods left some talented prosecutors, who took pride in learning their cases inside and out and feeling relied upon for their expertise in complex frauds or national security, seething.”
An attorney for Smith did not respond to a request for comment.
Attorney General Merrick Garland in 2024. (Photo by Jabin Botsford/The Washington Post)
He also sometimes turned down his employees’ ideas, including rejecting requests to open separate case files on some Trump allies such as former New York mayor Rudy Giuliani, according to the book.
His decisions had significant consequences. Before Trump was indicted in 2023 in the classified documents case, members of Smith’s team were wary of pursuing the matter in South Florida, rather than D.C., according to the book. They worried the case might land with Cannon, a relatively inexperienced judge confirmed late in Trump’s first term.
But the authors write that Smith was unconcerned about Cannon, saying the case was strong and adding: “I’m not worried about Florida.”
His team appeared to misjudge the chances that Cannon would get the case, according to the book. They initially concluded the odds were about 1 in 6 she would get the case, then realized later that there was nearly a 1-in-3 chance.
In the end, Cannon got the case. She dismissed it in July 2024, shortly before Trump formally received the Republican presidential nomination.
Soon after, Smith and his team submitted their motion appealing Cannon’s ruling to Solicitor General Elizabeth B. Prelogar for review and got her sign-off, the authors write.
Smith also sought Prelogar’s approval to ask the appeals court to remove Cannon from the case, according to the book. His team “charted the many choices Cannon had made that strained the law or bypassed precedent, and also favored Trump,” the authors write. Cannon had twice been rebuked by appeals court judges for her decisions in the case. Lawyers and former judges had also expressed bafflement at some of her choices in the case, which led to delays in the proceedings.
But Prelogar turned down Smith’s request, the authors of the new book write, concluding that he lacked the evidence to try to have her removed. Prelogar did not respond to a message seeking comment.
Trump faced a second indictment from Smith’s team in 2023 that accused him of conspiring to try to overturn the 2020 election. This case, too, spurred internal unease. When Smith and his team presented potential election interference charges to Garland, the attorney general “was visibly unenthusiastic” and sent them back to do more work and try to make sure the case would hold up, the authors write.
Others within the Justice Department also questioned whether the case was a slam dunk. To some federal lawyers, the authors write, evidence for the claim that Trump plotted to defraud the American public “seemed thin.”
An unnamed senior Justice Department attorney is quoted in the book saying: “It was a great story, a corrupt guy pushing a lie, but not a great criminal case.”
The case wound up before the Supreme Court, which ruled that presidents have broad immunity for official acts, laying out an expansive definition of presidential power.
Members of Smith’s team worried about being remembered “not for indicting Trump for election interference but for having inadvertently created some of the worst case law on executive power in U.S. history,” the authors write.
While Trump and his allies denounced the investigations against him as politically driven, the book portrays federal officials as deeply concerned about doing things that would be improper or appear so.
George Toscas, a veteran Justice Department official, warned Garland against naming one person to serve as special counsel over both Trump cases, according to the book. “It’s going to look like the anti-Trump investigation,” Toscas said.
Garland, a former appeals court judge, is presented in the book as a contemplative, methodical leader, deeply devoted to the department’s appearing apolitical while also prone to moving at a leisurely pace.
He sometimes dug into the nuts and bolts of issues to a striking degree, including when examining prosecutions of people charged in connection with the Jan. 6, 2021, attack on the U.S. Capitol, and “sometimes pulling out statute books to compare the prongs of a charge to the specifics of a defendant’s case file,” the authors write.
“Several senior department heads valued his careful legal analysis, and yet even they worried about the review pace,” the authors write. “Garland seemed to operate on a court of appeals clock, where judges often took several months to fashion a ruling.”
Garland could not be reached for comment.
His approach also irked “internal critics who worried an obsession with safeguarding the perception of an apolitical DOJ was interfering with its core mission in a moment with little historical precedent,” the authors write.
Garland appeared to acknowledge that his tenure as attorney general would leave some unsatisfied. In a private conversation, the authors write, “Garland lamented to a former colleague the difficulty of being a Democratic appointee who would likely disappoint the party.”
The book also portrays other moments of unease between different government officials, including during Trump’s first term, which was dominated in part by an investigation into whether his campaign coordinated with Russian efforts to interfere in the 2016 election. Trump long seethed about the probe, lashing out at the FBI and other officials over it.
Trump fired FBI Director James B. Comey amid the investigation, and replaced him with Christopher A. Wray, who floated the idea of resigning from the job multiple times, according to the book.
During a meeting with a Justice Department official, Wray was told to fire an FBI employee Trump wanted out, the authors write. Wray responded by moving as though he was going to write something down.
When asked what he was doing, Wray said he was “writing my resignation letter. Because if that’s an order, I’m done,” according to the book. The other official backed off.
Some dissent filtered down through the ranks. After the Jan. 6 attack prompted an expansive investigation, “some agents were stalling on requests to take standard investigative steps or balking at carrying them out altogether,” the authors write.
“Prosecutors also reported they were detecting a disturbing pattern [on Jan. 6 cases]: FBI agents in more rural and conservative areas of the country were the ones most likely to slow-walk or to fail to deliver on prosecutors’ requests that they question witnesses, or, in some cases, even to execute arrest warrants,” the authors continue.
Trump pardoned or commuted the sentences of Jan. 6 defendants after he was sworn in for a second term this year. He and his administration have also reshaped the Justice Department and FBI, forcing out numerous officials and pushing for his political foes to be prosecuted.
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