Outside the Beltway

Trump Special Counsel Likely

The Justice Department is looking to inoculate itself against charges of partisanship.

James Joyner · Friday, November 4, 2022 · 12 comments

Evan Perez, Katelyn Polantz, and Jeremy Herb have an exclusive for CNN (“DOJ mulling potential special counsel if Trump runs in 2024“):

As Donald Trump inches closer to launching another presidential run after the midterm election, Justice Department officials have discussed whether a Trump candidacy would create the need for a special counsel to oversee two sprawling federal investigations related to the former president, sources familiar with the matter tell CNN.

The Justice Department is also staffing up its investigations with experienced prosecutors so it’s ready for any decisions after the midterms, including the potential unprecedented move of indicting a former president.

In the weeks leading up to the election, the Justice Department has observed the traditional quiet period of not making any overt moves that may have political consequences. But behind the scenes, investigators have remained busy, using aggressive grand jury subpoenas and secret court battles to compel testimony from witnesses in both the investigation into Trump’s efforts to overturn the 2020 election and his alleged mishandling of national security documents kept at his Palm Beach home.

Now federal investigators are planning for a burst of post-election activity in Trump-related investigations. That includes the prospect of indictments of Trump’s associates – moves that could be made more complicated if Trump declares a run for the presidency.

“They can crank up charges on almost anybody if they wanted to,” said one defense attorney working on January 6-related matters, who added defense lawyers have “have no idea” who ultimately will be charged.

“This is the scary thing,” the attorney said.

[…]

Indicting an active candidate for the White House would surely spark a political firestorm. And while no decision has been made about whether a special counsel might be needed in the future, DOJ officials have debated whether doing so could insulate the Justice Department from accusations that Joe Biden’s administration is targeting his chief political rival, people familiar with the matter tell CNN.

Special counsels, of course, are hardly immune from political attacks. Both former special counsel Robert Mueller’s Russia investigation and special counsel John Durham’s investigation into the origins of the FBI’s Russia probe came under withering criticism from their opponents.

[…]

The Justice Department has brought in a brain trust for high-level advice on the Trump investigations, according to people familiar with the moves.

Top Justice officials have looked to an old guard of former Southern District of New York prosecutors, bringing into the investigations Kansas City-based federal prosecutor and national security expert David Raskin, as well as David Rody, a prosecutor-turned-defense lawyer who previously specialized in gang and conspiracy cases and has worked extensively with government cooperators.

Rody, whose involvement has not been previously reported, left a lucrative partnership at the prestigious corporate defense firm Sidley Austin in recent weeks to become a senior counsel at DOJ in the criminal division in Washington, according to his LinkedIn profile and sources familiar with the move.

The team at the DC US Attorney’s Office handling the day-to-day work of the January 6 investigations is also growing – even while the office’s sedition cases against right-wing extremists go to trial.

A handful of other prosecutors have joined the January 6 investigations team, including a high-ranking fraud and public corruption prosecutor who has moved out of a supervisor position and onto the team, and a prosecutor with years of experience in criminal appellate work now involved in some of the grand jury activity.

Taken together, the reorganization of prosecutors indicates a serious and snowballing investigation into Trump and his closest circles.

The decision of whether to charge Trump or his associates will ultimately fall to Attorney General Merrick Garland, whom President Joe Biden picked for the job because his tenure as a judge provided some distance from partisan politics, after Senate Republicans blocked his Supreme Court nomination in 2016.

Several former prosecutors believe the facts exist for a potentially chargeable case. But Garland will have to navigate the politically perilous and historic decision of how to approach the potential indictment of a former President.

Glenn Thrush has a similar report at NYT (“Justice Dept. Weighs Special Counsel for Trump Inquiries if He Runs“) adding:

The Justice Department hopes to reach a decision on whether to bring charges against former President Donald J. Trump before the 2024 campaign heats up, and is considering appointing a special counsel to oversee investigations of him if he runs again, according to people familiar with the situation.

The department is investigating Mr. Trump’s role in the efforts to reverse the outcome of the 2020 election and the Jan. 6 attack on the U.S. Capitol, and his retention of sensitive government documents at his residence and resort in Florida. It has made no decision in either case, but the inquiry into the former president’s handling of the documents is more straightforward, with prosecutors having publicly cited potential crimes that could be charged.

Senior department officials and veteran prosecutors with the department’s national security division, in conjunction with the U.S. attorney’s office in South Florida, have spent recent weeks quietly navigating the thicket of thorny issues needed to file charges in the documents investigation, weighing evidence, analyzing legal precedents and mulling practical considerations such as the venue of a possible trial.

The investigation, while proceeding quickly by Justice Department standards, has been slowed by Mr. Trump’s efforts in court to restrict the government’s access to the files removed from his home, and by the department’s self-imposed 30-day pause in issuing subpoenas ahead of this year’s midterm elections.

But behind the scenes, prosecutors have been busily compiling evidence and case law that could be used to frame a memo that would be the basis for any prosecution. And some involved in that effort have become concerned that an indictment or trial of Mr. Trump during the campaign could generate fierce criticism that could undercut the department’s commitment to being seen as enforcing the law in a nonpartisan manner.

[…]

Mr. Garland “needs to have a lawyer with Republican pedigree on that team to send the message that this is not a political persecution,” said John P. Fishwick Jr., who served as U.S. attorney for the Western District of Virginia from 2015 to 2017.

“This is the most important criminal case in our country’s history. Ultimately, every person in the United States will be the jury in this case, and they will need to have confidence that the prosecution team reflects all of them,” he said.

Even if more normal times, the optics of a Justice Department charging the man their boss beat in the last election—and his presumptive challenger in the next—would be awful. It’s inherently a political act.

There are so many vectors for possible prosecution of Trump that I don’t see how charges can be avoided while maintaining the concept that no man is above the law. At the same time, the notion that it can be done in such a way that it won’t be perceived as a partisan witchhunt by his supporters—which is to say, roughly 40 percent of Americans—is a fantasy. Anyone with “Republican pedigree” who dared charge him would be in the same boat as Liz Cheney, an apostate.