The Justice Department is weighing a run for a special counsel on the Trump probe
WASHINGTON — The Justice Department hopes to make a decision on whether to indict former President Donald J. Trump before the 2024 campaign heats up, and is considering appointing a special prosecutor to oversee investigations into him if he runs again, people say familiar with the situation.
The department is investigating Mr. Trump’s role in efforts to reverse the outcome of the 2020 election and the January 6 attack on the US Capitol, and its retention of sensitive government documents at his residence and resort in Florida. It has not made a decision in either case, but the investigation into the former president’s handling of the documents is simpler, as prosecutors have publicly listed the potential crimes she could be charged with.
Senior department officials and veteran prosecutors from the department’s national security division, in conjunction with the U.S. attorney’s office in South Florida, have spent the past few weeks quietly navigating the thicket of painstaking questions required to bring an indictment by investigating documents, weighing the evidence, analyzing legal precedents and thinking about practical considerations such as the location of a possible trial.
The investigation, while moving quickly by Justice Department standards, has slowed Mr. Trump’s investigation efforts in court to limit government access to files removed from his home, and the ministry’s self-imposed 30-day pause in issuing subpoenas ahead of this year’s midterm elections.
But behind the scenes, prosecutors were busily collecting evidence and case law that could be used to draft a memo that would form the basis of any prosecution. And some involved in the effort have grown concerned that an indictment or trial of Mr. Trump during the campaign could generate fierce criticism that could undermine the department’s commitment to being seen to enforce the law in an impartial manner.
Attorney General Merrick B. Garland and his team have long considered creating a layer of protection for the department by tapping a special prosecutor, an experienced prosecutor appointed by Mr. Garland to handle the day-to-day investigation. But even with the appointment of a special counsel, any final decisions about whether to indict Mr. Trump would still be made by Mr. Garland and senior department leadership.
Under federal law, the special counsel functions, in essence, as a recent US attorney’s office with broad discretion over every aspect of an investigation in “extraordinary circumstances” where the normal chain of command could be seen as creating a conflict of interest.
The Attorney General still has the right to approve or reject the special counsel’s recommendations. But if Mr. If Garland rejected the lawyer’s recommendation, he would have to notify Congress, a safeguard meant to ensure transparency and autonomy.
The department was considering the appointment of a special adviser first time reported by CNN.
A Justice Department spokesman did not immediately respond to a request for comment.
Recent special counsels include former Robert S. Mueller III, who oversaw the investigation into ties between the Trump campaign in 2016 and Russia, and John H. Durham, who launched two unsuccessful prosecutions of officials accused of misconduct in the Trump-Russia investigation.
Some former officials and legal experts said the appointment of a special counsel would give Mr. Garland a chance to choose a lawyer to counter accusations of a political witch hunt.
Mr. Garland “needs to have an attorney with Republican pedigree on that team to send a message that this is not a political persecution,” said John P. Fishwick Jr., who was U.S. attorney for the Western District of Virginia from 2015 to 2017.
“This is the most important criminal case in the history of our country. “Ultimately, every person in the United States will be a jury in this case, and they will have to trust that the prosecution team reflects all of them,” he said.
On WednesdayThe Justice Department has offered to allow Kash Patel, a close adviser to former Mr. Trump, to testify before a federal grand jury under privileged immunity about Mr. Trump’s handling of highly sensitive presidential records.
It was the latest indication that prosecutors are aggressively gathering the evidence needed to determine whether the former president mishandled sensitive government documents and attempted to obstruct justice by withholding information about the location of materials he removed from the White House after leaving office.
Mr. Trump, who remains the most powerful, popular and best-funded Republican in the country, has repeatedly suggested that he will run and he teased the announcement over the summer.
He has been vocal in his support of candidates who have supported his lies about the 2020 election, but has yet to announce his intention to run for a second term.
The status of the extensive investigation into January 6 remains less clear. Prosecutors have sought testimony and evidence from a number of people associated with Mr Trump, including lawyers such as John Eastman. But officials have yet to give any public indication of what charges, if any, might eventually be brought against Mr. Trump.
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