Justice Department projects large drop in special counsel spending

The Justice Department is projecting that special counsels will spend $4 million in the next fiscal year — just a fraction of the $29 million they are expected to rack up in the year ending in September.

The new estimates — contained in President Joe Biden’s budget sent to Congress on Monday — come as special counsels handling criminal cases against former President Donald Trump and Hunter Biden are gearing up for as many as four trials in the coming months.

It’s unclear how the Justice Department arrived at its estimate given the deep uncertainty about when and whether two complex Trump cases, both being handled by special counsel Jack Smith, will go before a jury.

“The $4 million figure is merely a placeholder for purposes of the FY 25 budget,” Justice Department spokesperson Wyn Hornbuckle said. “The Department performs further analysis 90 days before the beginning of each fiscal year, when a Special Counsel provides the budget request for the following fiscal year.”

Smith’s case against Trump in Florida over his alleged hoarding of classified information at his Mar-a-Lago estate is nominally scheduled for May 20, but is virtually certain to be postponed. Intense pretrial litigation is underway in that case, and it remains unclear whether the trial will begin in late summer or after the November election.

Smith’s other case against Trump, charging him with conspiring to overturn the 2020 presidential election results, was set for trial this month in Washington, but was put on hold due to Trump’s appeal claiming he’s immune from prosecution over acts arguably related to his role as president. That issue is set to be argued before the Supreme Court next month, with any trial in that case looking unlikely to start before late summer.

Meanwhile, special counsel David Weiss is preparing for trials in two criminal cases against President Joe Biden’s son Hunter: a case in Delaware charging him with gun-related offenses and another in Los Angeles charging him with failing to pay his taxes for years. No trial date has been set in the Delaware case, while the case in California is set for June 20.

The decline in projected spending is, in some ways, intuitive: Two of the four special counsels that operated during Biden’s tenure — John Durham and Robert Hur — have concluded their probes. Durham, who was appointed special counsel by Attorney General Bill Barr in the waning months of Trump’s presidency, probed allegations of misconduct by Justice Department officials pertaining to the Russia probe of Donald Trump and his allies. Durham’s probe netted one guilty plea of an FBI attorney, but two other individuals charged in that special counsel probe were acquitted by juries.

Hur, who is set to testify Tuesday on Capitol Hill, reviewed allegations that Joe Biden mishandled classified information and concluded that the president did not commit a criminal offense, despite a stinging assessment of his conduct and memory. Hur formally ended his assignment over the weekend, a Justice Department official said.

The other two — Smith and Weiss — are likely to have substantially completed their investigations by next year.

However, the estimate suggests the department is anticipating at least some work to carry over, a notable assessment at a time that federal judges have put up substantial roadblocks to Smith’s efforts to put Trump on trial in 2024.

The projected outlays do not include all the spending that could be viewed as attributable to a specific investigation. Semi-annual financial reports for each special prosecutor often show about half an investigation’s spending as the kind of direct expense that would be charged to a prosecutor’s budget and the other half as spending incurred by federal agencies for personnel and other costs, including security.

A clearer picture of Smith’s spending is not expected until the next wave of reports is released early next year.

The last set of reports, released in January, showed Smith tallying about $12.8 million in personnel, rent and other expenses on his own budget and about $11 million in spending by other Justice Department agencies in the fiscal year ending last September. That covers about a ten-month period after Smith was tapped by Attorney General Merrick Garland last November.

Special counsels are funded from a “permanent and indefinite” congressional appropriation that dates back to when independent counsels were authorized under a law that expired in 1999. The Government Accountability Office declared in 2004 that the appropriation remains available for special counsels now appointed under DOJ regulations.