How serious those conversations were and how long ago they took place is not clear. But Attorney General Merrick Garland and others may face a decision soon as Trump, who lost his bid for a second term in 2020, may announce a new presidential campaign as early as Tuesday night.
A Justice Department spokesperson declined to comment. Those familiar with the matter spoke on condition of anonymity to discuss internal deliberations.
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Numerous political candidates have been investigated as they ran — including Hillary Clinton, Trump’s Democratic opponent in 2016. The FBI investigation into Clinton’s use of a private email server opened in mid-2015, continued through the primary, and was closed just before. the nomination convention and then reopened publicly less than two weeks before Election Day.
No special counsel has been appointed for that investigation.
Under Justice Department regulations, the Attorney General will appoint a special counsel “shall,” essentially a prosecutor specifically chosen to handle a particular criminal investigation, if a case meets several criteria, notably: that an investigation is warranted in a manner that creates a conflict of interest for the Department of Justice “or other extraordinary circumstances”, and that under those circumstances it “would be in the public interest” to appoint special counsel to handle the case.
It is critical that, even if special counsel is appointed, that person still reports to the Attorney General, who has ultimate authority over what to do with the evidence.
That’s what Garland said earlier this year when asked at a Senate hearing why he had not appointed special counsel to investigate Hunter Biden, the president’s son, who is at the center of a long-running investigation involving his business transactions and taxes.
The status of major investigations involving Donald Trump
“In any case, this is a fact and a provision of law,” Garland told lawmakers, adding that special counsel “are also Justice Department employees” — meaning they still report to the Attorney General.
Sarah Isgur served as an adviser to Deputy Attorney General Rod J. Rosenstein in 2017 when he appointed Robert S. Mueller III as special counsel to investigate possible ties between Russian election interference and the Trump campaign. She said she doesn’t think Garland has much choice but to appoint a special counsel if Trump becomes president.
“Unless they’ve already decided not to press charges, I don’t see how the attorney general can get around the rules here,” Isgur said. “He must appoint a special counsel when a criminal investigation would raise a conflict of interest. And what greater conflict is there for the Justice Department’s political appointees than whether to charge the man who is taking on their boss?
While the appointment of Mueller’s special counsel was not highly controversial when it was first made, there were some circumstances surrounding that decision that are not yet clear in the current Trump investigations.
Mueller was hired shortly after Trump fired FBI Director, James B. Comey, giving Trump an interview where he said he was thinking about the Russia probe investigation when he made the decision to fire Comey. And behind the scenes, there was significant tension between FBI and Justice Department leaders over how to conduct the investigation.
It is true that the current investigations involving Trump are overseen by an official from the Biden administration. But it’s also true that the FBI director, Christopher A. Wray, is a Trump appointee and a Republican. Perhaps more importantly, it is not certain that Biden will run again in 2024. The president has said he “intends” to run for re-election, but has not yet made a decision. If he refuses to seek a second term, it could lessen potential conflicts for the Justice Department.
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Another difference between then and now is that Rosenstein and other senior Justice Department officials were just beginning to grapple with the facts of the Russia investigation when Mueller was appointed — unlike now, when Garland oversees the Mar-a -Lago and January 6. related investigations over many months.
On the other hand, it’s also possible that a hitherto publicly unknown factual wrinkle has emerged in the Mar-a-Lago or Jan. 6 cases that could heighten officials’ concerns about potential conflicts of interest.
Matthew Miller, a Justice Department spokesman during the Obama administration, said he saw no benefit in appointing a special counsel now, after nearly two years when Trump and his allies denounced Justice Department investigations as political motivated.
“The typical reason for a special counsel is that it depoliticizes a case or tries to depoliticize a case. I think with Trump it will have the opposite effect because it would give him a foil to rage against,” Miller said. “Trump always benefits from making everything a circus and the way out of the circus is not to buy a ticket. You better treat this case as normal, handled by [federal prosecutors] who report to an Attorney General who will defend it.
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Other experts, such as Mary McCord, a former senior national security official at the Justice Department, said the investigation has been going on too long for Garland to appoint special counsel now. “There are already people saying it’s politically motivated,” she said. “You can’t really erase it if there’s special counsel.”
McCord noted that the Justice Department began its investigation many months before Trump announced his candidacy. And since Biden has not yet announced whether he will seek a second term, it would be inaccurate to say that the Justice Department has launched a criminal investigation into anyone running against the incumbent president.
Another complicating factor is how Republicans, if they gain control of the House of Representatives, can approach the Justice Department’s investigation into Trump.
Trump “will without question attack any special counsel who investigates him,” said Stephen A. Saltzburg, a law professor at George Washington University and a Justice Department official during the George HW Bush administration.
“If the attorney general chooses an attorney with prosecution experience who is a Republican, a prosecution would be a little easier than if the Justice Department itself prosecuted,” Saltzburg said.
But he cautioned that there are also potential drawbacks.
“You don’t know how the prosecution will go,” he said. “And there is a risk that people will get the impression that the Justice Department appoints special counsel because it cannot be fair.”