Grassley, Johnson accuse Garland of ignoring Trump special counsel's conflicts, DOJ's double standard

Senators say Jack Smith has political connections that could affect his work

EXCLUSIVE: Republican Sens. Chuck Grassley and Ron Johnson are accusing Attorney General Merrick Garland of ignoring potential conflicts of interest posed by naming Jack Smith as special counsel to oversee the investigations into former President Trump, and they say that the Justice Department has a double standard when deciding which cases qualify for the appointment of a special counsel.

Grassley and Johnson argued in a letter to Garland sent Wednesday that Smith, a former Justice Department official, has "overtly political and professional connections" related to people involved in the case, and they say the special counsel statute is not being applied evenly and without regard for partisan affiliation.

Garland appointed Smith in November to oversee the investigation into "whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote" and the Justice Department’s investigation into Trump’s potential mishandling of classified information.

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FILE - Sen. Chuck Grassley, R-Iowa

FILE - Sen. Chuck Grassley, R-Iowa (Susan Walsh/Pool/AFP via Getty Images)

Over the summer, Grassley warned Garland that former FBI Assistant Special Agent in Charge Timothy Thibault and former DOJ Election Crimes Branch Director Richard Pilger were "deeply involved in the decisions to open and pursue election-related investigations against President Trump."

At the time, whistleblowers told Grassley that the Thibault-Pilger investigation's predicating document was based on information from "liberal nonprofit American Oversight." In the investigation’s opening memo sent to the upper levels of the DOJ for approval, however, whistleblowers claimed Thibault and Pilger "removed or watered-down material connected to the aforementioned left-wing entities that existed in previous versions and recommended that a full investigation — not a preliminary investigation — be approved."

FILE - Sen. Ron Johnson, R-Wis.

FILE - Sen. Ron Johnson, R-Wis. (AP Photo/Morry Gash)

Garland approved that investigation.

Based on Smith’s scope memo, Grassley and Johnson wrote that the Thibault-Pilger investigation is included in the special counsel’s jurisdiction.

They also point out that Smith has a prior relationship with Pilger. Smith was in charge of the DOJ’s Public Integrity Unit while Pilger was in charge of the Election Crimes Branch.

"Accordingly, Mr. Smith is now overseeing an investigation that was allegedly defective in its initial steps and an investigation which his former subordinate [Pilger] was involved in opening," Grassley and Johnson wrote. They said Smith and Pilger also overlapped during the IRS's improper targeting of nonprofit conservative groups during the Obama administration.

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On the issue of double standards, Grassley and Johnson said other high-profile investigations of Democrats did not result in the appointment of independent prosecutors.

"Notwithstanding the Justice Department’s failure to appoint a special counsel in the Hunter Biden criminal matter in the face of overwhelming evidence of conflicts and the public interest requiring it, your decision to appoint Mr. Smith in light of legitimate questions with respect to his objectivity is yet another political decision by the Biden Justice Department, not the absence of one," they wrote.

FILE - U.S. Attorney General Merrick Garland

FILE - U.S. Attorney General Merrick Garland (Anna Moneymaker/Getty Images)

Grassley and Johnson slammed Garland by saying that "instead of appointing a special counsel devoid of overtly political connections and professional connections to the very individuals that were involved in opening the criminal matters that apparently he is now overseeing, you chose a special counsel wrapped-up (sic) in both."

"The Justice Department’s track record with respect to informing Congress and the public that it has prevented potential or actual conflicts from infecting investigations leaves much to be desired," they wrote.

Grassley and Johnson again pressed Garland on whether Nicholas McQuaid, the former principal deputy assistant attorney general for the DOJ’s Criminal Division, was recused from the investigation into Hunter Biden in light of his "conflicts of interest" — a question the senators have been asking, and the DOJ has been dodging, for months.

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McQuaid, who joined the DOJ in 2021 to lead the criminal division, is a former colleague of the attorney now representing Hunter Biden in the face of a years-long federal investigation into his tax affairs that began in 2018.

"The Department’s past failure to comply with legitimate congressional oversight requests with respect to compliance with ethical standards does not engender trust in the Department’s decision-making process in appointing Mr. Smith," they wrote.

Jack Smith was appointed to be special counsel looking into two major Trump investigations.

Jack Smith was appointed to be special counsel looking into two major Trump investigations. (Justice Department)

Grassley and Johnson also called out the Justice Department's decision in 2016 against appointing a special counsel to investigate Hillary Clinton's private email server and mishandling of classified information while she served as secretary of state. At the time, Clinton was the Democratic nominee for president of the United States.

Grassley and Johnson pointed to then-FBI Director James Comey's drafting of an exoneration statement for Clinton "before interviewing her and 16 other relevant witnesses."

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"The kid-gloves treatment given to Secretary Clinton by the Justice Department is different than the apparent treatment given to former President Trump," they wrote. Trump is currently the only declared Republican presidential candidate for 2024.

"The Department has failed to explain that discrepancy and that failure has cast doubt as to whether or not its actions are political in nature," they wrote. "If the Department opens an investigation, it must be done without regard to party, privilege or power."

"Given the incriminating circumstances on the part of the FBI, the Department must explain its actions," they said.

Neither the Justice Department nor the FBI immediately responded to Fox News' request for comment.