Before stepping into the high-wire job of investigating Donald Trump, special counsel Jack Smith spent years working in Europe, pursuing a war crimes case that briefly intersected with the then-U.S. president.
Attorney General Merrick Garland and his advisers hope those experiences will gird Smith for the challenges and attacks that come with investigating a former U.S. president, one who last week publicly compared the FBI agents investigating him to the Gestapo.
Garland named Smith in November to oversee prosecutors in two cases. The first involves hundreds of classified documents apparently taken to Trump’s Florida home after his presidency ended; the second is a probe of the machinations that led up to the Jan. 6, 2021, attack on the U.S. Capitol and attempts to overturn Joe Biden’s presidential victory.
The appointment drew skepticism and ire from Trump’s Republican defenders, some of whom used political activity by Smith’s filmmaker wife to question his ability to be impartial. And the job grew even more complicated this month, with Garland naming a different special counsel, Robert K. Hur, to investigate a classified-documents scandal involving President Biden and his advisers. That case is similar in some ways to the Trump documents probe but so far includes key differences.
Smith’s former colleagues frequently cite his career as an American prosecutor — first for the Manhattan District Attorney’s Office, then for the U.S. attorney’s office in Brooklyn and Justice Department headquarters — as key experiences to draw on as he investigates the former president. The best way to understand Smith’s approach to his new job, however, may lie not in his past work in the United States, but in his more recent time at The Hague, prosecuting figures that most Americans have never heard of.
As head of the Kosovo Specialist Prosecutor’s Office, Smith, 53, had to build a playbook — and decide when to toss it out and improvise. He angered some Trump allies, even as he may have saved the then-president some embarrassment. And he survived an unusual crucible: deciding whether to indict Kosovo President Hashim Thaci, at the time a popular U.S.-backed head of state.
“That’s not the easiest decision in the world to make. You really have to have confidence in yourself,” said David Schwendiman, Smith’s predecessor in the Kosovo role. “And you have to be bold enough to make the call.”
A hard case to make
The Kosovo Specialist Prosecutor’s Office was created in 2016, after European Union officials spent years investigating allegations that Kosovo Liberation Army leaders committed war crimes as the Balkan republic fought for independence in the 1990s in the former Yugoslavia.
Under pressure from the United States, a key Kosovo ally, as well from as the E.U., the Kosovo government agreed to pass a law and a constitutional amendment recognizing the authority of the independent office, which was to be staffed internationally.
The office’s task was challenging: develop evidence of alleged war crimes that were two decades old, across international borders, from witnesses facing significant political and even physical intimidation, about leading political figures in the young republic.
Schwendiman compared it to prosecuting Kosovo’s equivalent of Benjamin Franklin and Alexander Hamilton. “If you indict these people, you’re saying, ‘The founding fathers of Kosovo have committed atrocities, and I’m ready to prove it, in an independent court, with independent judges and rules that apply to everyone.’”
That work came with significant external pressures. Some officials wanted quick charging decisions, while others pushed hard for the opposite, wanting the investigation to simply go away, Schwendiman recalled. The political currents were further complicated by diplomatic efforts to normalize Kosovo-Serbia relations. Serbia never recognized Kosovo’s independence after the latter broke away with NATO help in 1999. The Trump administration hoped to broker better relations between the two Balkan countries.
By the time Schwendiman stepped down in 2018, the office had formally declared that there was sufficient evidence to support the creation of a criminal court but had not yet decided whether any officials should face charges. He recalled telling others at the time that he hoped his successor, to be chosen by officials at the E.U., would be someone like Smith, who had a reputation for independence and rare experience that married leadership of the Justice Department’s Public Integrity Section and previous work at the International Criminal Court.
“He was the model I was looking at,” Schwendiman said.
War-crimes accusations against Thaci, a former Albanian top commander of the Kosovo Liberation Army, had circulated for years. Resolving them was a prime rationale for the creation of the prosecutor’s office. In June 2020, Smith’s office revealed that it had decided to seek an indictment of the sitting president, announcing it had asked the court to confirm a 10-count indictment that included nearly 100 murders and the torture of hundreds of known victims.
The timing of the announcement was unorthodox. Under the rules of the court, prosecutors were to file indictments under seal to a judge, who would then take six months to decide whether the charges had merit and should be made public. The sealed Thaci indictment, however, was just two months old.
In a written statement at the time, Smith’s office said it was being announced early because of “repeated efforts” by Thaci and others “to obstruct and undermine the work” of the prosecutor’s office, potentially threatening the viability of the case. Thaci and Kadri Veseli, a former speaker of Kosovo’s parliament, were “believed to have carried out a secret campaign to overturn the law creating the Court and otherwise obstruct the work of the Court in an attempt to ensure that they do not face justice,” the statement said.
Even as it was released, Thaci was headed to Washington to meet with then-President Trump — talks that some White House officials hoped might produce new trade agreements involving the Balkans and boost Trump’s reputation as a sharp negotiator ahead of the 2020 election. Trump had invested significant personal capital in the effort to broker better ties between Serbia and Kosovo, telling Thaci and his Serbian counterpart in 2018 that an agreement was “within reach” and promising to host the two men at the White House to celebrate if they could come to a “historic accord.”
When Thaci learned that prosecutors were seeking his indictment, he canceled the visit and returned home. He later resigned. He has pleaded not guilty and is scheduled to face trial this year.
Writing on his social media platform Truth Social this month, Trump accused Smith of putting “a high government official in prison because he was a Trump positive person” while acting as a prosecutor in Europe — an apparent reference to Thaci.
A spokesman for the Kosovo Specialist Prosecutor’s office declined to comment on Trump’s allegation.
Documents from the Kosovo court show Smith’s office sought permission from the presiding judge before disclosing the indictment, filing an urgent request to make the charges public. Within a day, the judge ruled that the disclosure was “warranted on an exceptional basis.”
A person familiar with the prosecutors’ decision, who spoke on the condition of anonymity to discuss a sensitive matter, said the looming summit between Trump and Thaci played no role in the decision to seek permission to publish the indictment. What’s more, prosecutors had no way of knowing the judge would decide the matter in less than a day — undercutting the notion that the timing was intended to derail the meeting, this person said.
Leaks and obstruction
A separate case from Smith’s time in Kosovo also raises interesting potential parallels to the Trump-related investigations.
As a war crimes prosecutor, Smith had charged, tried and convicted two prominent supporters of the Kosovo Liberation Army for sharing files stolen from his office.
A few months after the announcement of the Thaci indictment, leaders of the Kosovo Liberation Army’s War Veterans Association offered reporters information about possible defendants in the war crimes cases, criminal theories of investigations and details about sensitive witnesses. They said they had received the material anonymously, and urged reporters at three separate news conferences, to publish some of the information.
The men were ultimately convicted of obstruction, intimidation during criminal proceedings and violating the secrecy of proceedings. While they were given more than four years in prison for sharing the files, no one has ever been charged with providing them the information, and no one has claimed responsibility for it.
U.S. law has not generally been applied the same way to people who receive and share government secrets, but Trump’s lawyers have already complained repeatedly about what they say are improper government leaks of details of the investigations surrounding the former president.
Republican allies of Trump — including many who have long focused on alleged leaks to accuse the Justice Department and FBI of wrongdoing — have echoed the concerns expressed by his lawyers and have created a House subcommittee empowered to investigate those who are investigating the former president.
Some Trump supporters have seized on the politically themed activity of Smith’s wife, Katy Chevigny, to try to undercut the prosecutor’s credibility. In his Truth Social post this month, Trump called Smith “a Trump Hating THUG whose wife is a serial and open Trump Hater.”
Chevigny, a documentary filmmaker, in 1997 founded Big Mouth Productions, a documentary production company that makes “thought-provoking and engaging media,” according to its website. Chevigny donated $1,000 to Biden’s presidential campaign in September 2020 while he was challenging Trump for the White House, campaign finance records show.
She was a producer for “Becoming,” the 2020 documentary that accompanied the release of former first lady Michelle Obama’s autobiography; Michelle and Barack Obama served as producers on the project. Other Chevigny projects have also touched on political subjects, including 2018’s “Dark Money,” which explored the role of money in American politics, and “Election Day,” a 2007 documentary that she directed describing the experience of voters around the country.
A Justice Department spokesperson declined to comment. The agency has no rules that would prohibit political activity and donations by the spouse of a prosecutor, but Trump has a history exploiting signs of political activity in the families of his investigators to undermine their work. He complained for years, for instance, that the wife of former deputy FBI director Andrew McCabe had run for the state Senate in Virginia as a Democrat, receiving hundreds of thousands of dollars in campaign donations from entities controlled by Gov. Terry McAuliffe (D), an ally of Trump’s 2016 opponent, Hillary Clinton.
Trump also railed about the political background of some of those appointed to special counsel Robert S. Mueller III’s team, which investigated the president from 2017 to 2019. At least seven of the 15 lawyers first hired by Mueller had donated to Democratic political candidates, five of them to Clinton, a Washington Post analysis found in 2017.
Justice Department policies and federal law prohibit discriminating on the basis of political affiliation in hiring for nonpolitical positions, which the department sometimes cites to assert that it is hamstrung in considering past political affiliations of its hires, much less those of their spouses.
Garland was not required by regulation or law to appoint a special counsel, however. He said he did so because he concluded that the appointment was “the right thing to do,” given that Trump declared his 2024 presidential bid and Biden, too, has indicated he plans to run.
Kelly Currie, a former federal prosecutor colleague of Smith, said Smith would not have accepted the role without being aware of the intense scrutiny that would come with it.
“He’s the kind of person who’s not going to second-guess himself on a call based on what some pundit is going to write or say on TV,” Currie said.