Comment Another presidential bid by Donald Trump would not shield him from a criminal investigation, but it could complicate the decision-making process at the Justice Department as senior officials try to show that investigating a political figure is not the same thing as a political one. research. Privately, Justice Department officials have discussed the possibility of appointing a special counsel to take over investigations involving Trump — such as the classified Mar-a-Lago documents case or efforts to prevent Joe Biden from assuming the presidency after his election 2020 – if Trump formally declares a 2024 presidential run, people familiar with the matter said. How serious these discussions were and how long ago they took place is not clear. But Attorney General Merrick Garland and others may soon face a decision point as Trump, who lost his bid for a second term in 2020, may announce a new presidential campaign on Tuesday night. A Justice Department spokesman declined to comment. The people familiar with the matter spoke on condition of anonymity to discuss the internal deliberations. Researchers see ego, not financial gain, as Trump’s motivation for keeping classified documents Many political candidates have been investigated while running for office – 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 throughout the primaries , closed just before the nominating convention and then reopened publicly less than two weeks before Election Day. No special counsel has been appointed for this investigation. Justice Department regulations say the attorney general “shall appoint” a special prosecutor, essentially a prosecutor selected to handle a particularly criminal investigation, if a case meets several criteria, namely: that the investigation is justified in a way that presents a conflict; interests of the Department of Justice “or other extraordinary circumstances” and that under those circumstances “it would be in the public interest” to appoint a special counsel to handle the case. Crucially, even if a special counsel is appointed, that person will still report to the attorney general, who will have the final authority on what to do about the evidence. Garland made this point earlier this year when asked at a Senate hearing why he had not appointed a special counsel to investigate Hunter Biden, the president’s son, who is at the center of a long-running investigation into business transactions and taxes. The status of key investigations involving Donald Trump “That’s a fact and the law determination in each case,” Garland told lawmakers, adding that the special counsels “are also employees of the Department of Justice” — meaning they still report 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 any possible ties between Russian election meddling and the Trump campaign. He said he doesn’t think Garland has much choice but to appoint a special counsel if Trump runs for president. “Unless they’ve already made the decision not to press charges, I don’t see how the attorney general can override the regulations here,” Isgur said. “He should appoint a special counsel where a criminal investigation would present a conflict of interest. And what greater conflict is there for political appointees at the Department of Justice than whether to indict the guy running against their boss?” While the appointment of special counsel Mueller was not very controversial when it was first made, there were some circumstances surrounding that decision that are not yet apparent in the current Trump investigations. Mueller was appointed shortly after the firing of FBI Director James B. Comey, and Trump gave an interview saying he was thinking about the Russia investigation when he made the decision to fire Comey. And behind the scenes, there was considerable tension between FBI and Justice Department leaders over how to conduct the investigation. It is true that the current investigations involving Trump are being overseen by a Biden administration official. But it’s also true that FBI Director Christopher A. Wray was appointed by Trump and is 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 made a decision. If he declined to seek a second term, that may lessen any potential conflict for the Justice Department. Republican rivals are beginning to plan for a post-Trump future Another difference between then and now is that Rosenstein and other senior Justice Department officials were just beginning to face the facts of the Russia investigation when Mueller was appointed — as opposed to now, when Garland was overseeing Mar-a-Lago and on January 6 related investigations for many months. On the other hand, it’s also possible there’s some still-publicly unknown real wrinkle that’s come up in the Mar-a-Lago or Jan. 6 affairs that could heighten officials’ concerns about potential conflicts of interest. Matthew Miller, a Justice Department spokesman during the Obama administration, said he sees no upside to appointing a special counsel now, after nearly two years of Trump and his allies denouncing Justice Department investigations as politically motivated. “The standard reason for a special counsel is to depoliticize a case or try to depoliticize a case. I think with Trump, it would have the opposite effect, because it would give him a foil against him,” Miller said. “Trump always benefits from turning everything into a circus, and the way out of the circus is not to buy a ticket. Better to treat this case as usual, which he is handling [federal prosecutors] referred to an attorney general who will defend it.’ The classified Mar-a-Lago papers held secrets about Iran’s missiles, China Other experts, such as Mary McCord, a former senior national security official at the Justice Department, said the investigation had gone on too long for Garland to appoint a special counsel now. “There are already people saying it’s politically motivated,” he said. “You can’t really write it off if there’s a special counsel.” McCord noted that the Justice Department began its investigation many months before Trump announced his candidacy. And since Biden has yet to announce whether he’ll seek a second term, it wouldn’t be accurate to say the Justice Department has opened a criminal investigation into someone running against the sitting president. Another complicating factor is how Republicans, if they win control of the House of Representatives, may approach the Justice Department’s investigation of Trump. Trump “will attack any special counsel who investigates him, without a doubt,” said Stephen A. Salzburg, a law professor at George Washington University and a Justice Department official during the George H.W. Bush administration. “If the attorney general picks a lawyer with prosecutorial experience who is a Republican, the prosecution would go down a little easier than if the Justice Department itself prosecuted,” said Salzburg. However, he cautioned that there are also potential downsides. “You don’t know how the prosecution is going to go,” he said. “And there’s some danger that people will get the impression that the Justice Department is appointing special counsel because it can’t be fair.”
