Legal experts cast doubt on need for Trump-focused special counsel
Jerry Dunleavy
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Legal experts, including one of Robert Mueller’s top prosecutors, are casting doubt on the idea that Attorney General Merrick Garland should appoint a special counsel to handle the Justice Department’s investigations into former President Donald Trump.
The specter of criminal charges against Trump has reemerged following the former president declaring a new presidential bid Tuesday night, as the DOJ is investigating Trump related to the events of Jan. 6, 2021, and separately conducted an unprecedented FBI raid of Trump’s Florida resort home of Mar-a-Lago in August.
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CNN reported in early November that Justice Department officials have had discussions about the possibility that a special counsel would be needed to handle the Trump-related investigations, and multiple other outlets have confirmed the internal conversations.
Andrew Weissmann, considered one of the Mueller investigation’s most powerful prosecutors, told the Hill earlier this month that he believed Garland’s DOJ had already considered and rejected a Trump special counsel but that “I think it’s responsible if they’re looking at it again” given the former president’s moves toward reelection, but that “I just didn’t know that the analysis changes a lot.”
But the former Mueller prosecutor seemed to reject the idea just days later, tweeting: “Important new piece. Mr. Attorney General, It’s Too Late to Appoint A Special Counsel.”
The story he shared was co-authored by Laurence Tribe, professor emeritus at Harvard University, who wrote that “appointing a special counsel triggered by the former president’s announcement of his 2024 candidacy would itself appear to put politics over principle” and “would undermine the rule of law.”
Garland was asked in March whether he would consider a special counsel to investigate Trump, and he declined to speak specifically about the former president.
“We don’t talk about how we would do investigations or how we are doing investigations — that’s a norm of the department,” Garland said. “I would say generally about this question about what’s political and what’s not political: we do not shy away from cases that are controversial or sensitive or political, and to do that would undermine the norm of the rule of law, which is that we treat like cases alike, without regard to the subject matter.”
Mary McCord, the acting head of the DOJ’s National Security Division in 2016 and 2017, told the Washington Post that it was too late to appoint a special counsel. McCord, who is mentioned in the Mueller report related to the controversy surrounding Lt. Gen. Mike Flynn, and who reviewed some of the FISA applications targeting Trump campaign associate Carter Page, told the outlet, “There are already people who say it is politically motivated. You can’t really erase it if there is a special counsel.”
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Matthew Miller, an Obama Justice Department spokesman, told the outlet he didn’t think a Trump special counsel was a good idea.
“The typical reason for a special counsel is it depoliticizes a case or attempts 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, adding, “You are better off treating this case as business as usual, handled by [federal prosecutors] who report up to an attorney general who will defend it.”