How serious that information is and how far back in time it is is unclear. But Attorney General Merrick Garland and others will face a decision point, as he has lost his bid for a second term in 2020 and may announce another presidential campaign on Sunday night.
A Justice Department spokesman declined to comment. The people familiar with the matter spoke on condition of anonymity to discuss internal negotiations.
Many political candidates have been investigated while running for office – including Hillary Clinton, Trump’s Democratic opponent in 2016. The FBI’s investigation into Clinton’s use of a private email server in opened in mid-2015, continued throughout the primary schools, which were closed long ago. the nomination session will then be reopened no later than two weeks before Election Day.
No independent consultant was appointed for that study.
According to Justice Department rules, the Attorney General “shall” appoint a special counsel, usually a prosecutor selected to handle a criminal investigation, if a case meets certain criteria, in particular: authorizes an investigation in a way that creates a conflict of interest for the Justice Department “or in other circumstances,” and under those circumstances “it is in the public interest” to appoint a special counsel to conduct the investigation case.
Most importantly, even if a special counsel is appointed, that person will still report to the attorney general, who has the ultimate authority to act on the evidence.
Garland made that comment earlier this year when asked at a Senate hearing why he did not appoint a special counsel to investigate Hunter Biden, the president’s son, who was the subject of the long research about him. business practices and taxes.
“This is a matter of fact and a case-by-case decision,” Garland told lawmakers, adding that special counsel “are also employees of the Department of Justice” — meaning they still report. them to the attorney general.
Sarah Isgur served as counsel to Deputy Attorney General Rod J. Rosenstein in 2017, when he appointed Robert S. Mueller III as special counsel to investigate possible connections between Russia election and Trump campaign. He said he doesn’t think Garland has much of a choice but to name a special counsel if Trump runs for president.
“If they’ve decided not to prosecute, I don’t see how the Attorney General can change the laws here,” Isgur said. “He should appoint a special counsel and come out of the criminal investigation there is a conflict of interest. And what is a bigger battle for political candidates at the Department of Justice than to impeach someone who is running against their boss?
Although Mueller’s appointment of special counsel was not controversial at first, there are aspects of that decision that have not been seen in the current Trump investigations.
Mueller was appointed shortly after Trump fired FBI director James B. Comey, and Trump gave an interview saying he was considering the Russia probe when he made the decision to fire him. Comey. And after the revelations, there was a lot of tension between the FBI and the leaders of the Department of Justice about the conduct of the investigation.
It is true that the current investigations involving Trump are being investigated by a Biden administration official. But the same issue is that the FBI director, Christopher A. Wray, who was nominated by Trump, is also a Republican. Perhaps more importantly, it is not certain that Biden will run again in 2024. The president has said that he has “considered” running for re-election but has not decided. If he declines to apply for a second term, that could mean fewer problems for the Justice Department.
Another difference between then and now is that Rosenstein and other senior Justice Department officials began cracking down on the Russia investigation when Mueller was appointed — unlike now , when Garland was in charge of Mar-a-Lago and January 6 for several months.
On the other hand, there may be a yet-to-be-publicly known wrinkle that has come up in the Mar-a-Lago or January 6 cases that could make officials more concerned about potential conflicts of interest.
Matthew Miller, a Justice Department spokesman during the Obama administration, said he did not see the merit of appointing a special counsel now, after nearly two years of Trump and his allies to condemning Justice Department investigations as politically motivated.
“The main reason for a special counsel is to dismiss a case or to try to dismiss a case. I think with Trump, it will be different because he will send papers to anger,” says Miller. “Trump has always benefited from turning everything into a circus and the way out of the circus is not to buy tickets. You better do this case like previously, by management [federal prosecutors] will report to the attorney general to protect him.”
Other experts, such as Mary McCord, a former national security official at the Justice Department, said the Garland investigation was too long to appoint a special counsel. “There are people who say it’s political,” he said. “You can’t cancel unless there’s special instructions.”
McCord said the Justice Department began its investigation months before Trump announced his candidacy. And since Biden hasn’t said whether he’ll seek re-election, it’s not fair to say the Justice Department has launched a criminal investigation into someone running against the sitting president.
Another troubling issue is how Republicans, if they gain control of the House of Representatives, will approach the Justice Department’s investigation of Trump.
“Trump will attack a special counsel investigating him, without a doubt,” said Stephen A. Saltzburg, a George Washington University law professor and a Justice Department official at the time. administration of George HW Bush.
“If the attorney general picks a lawyer who has experience in prosecutions, and who happens to be a Republican, it’s easier for the prosecution to go down than for the Justice Department to bring a prosecution,” Saltzburg said. .
But he cautioned that there are also downsides.
“You never know how the trial will go,” he said. “And there’s a chance that the Justice Department will think that the Justice Department is going to appoint special counsel because it’s not necessary.”
