Legal observers cast doubt as DOJ mulls Trump special counsel

Donald Trump’s signals that he may soon launch his 2024 candidacy are triggering discussions over whether to appoint a special counsel to oversee the numerous criminal probes into the former president — with legal experts warning the idea holds little benefit for the Justice Department. 

Justice Department leaders have been discussing the issue more seriously, according to CNN, amid reports that Trump could announce a presidential bid as early as Monday night.  

Several legal observers interviewed by The Hill said it would be a bad idea for the Justice Department to appoint a special counsel. 

“If they’re going to do a special counsel because they think that it will protect the prosecution of the former president from political attack on the grounds that the indictment is politically motivated, that’s a fool’s errand because going that way will have minimal impact on the width and breadth of the criticism,” said Jeff Robbins, an attorney now in private practice who has served as both a federal prosecutor and a Senate investigative counsel. 

Legal experts say Attorney General Merrick Garland would have to be aware that many Trump supporters will be unsatisfied by a prosecution no matter who takes the reins. 

“If the appointment of independent counsel was meant to forestall criticism, that wouldn’t work anyway,” said Michael Bromwich, who served as the Justice Department’s inspector general during the Clinton administration and as a prosecutor for the independent counsel that investigated the Iran-Contra scandal. 

He said people who “don’t like any prosecutor who decides to charge Trump are going to find a way to dislike it.” 

“And so the attacks on Merrick Garland will exist if he keeps the case, and they would exist if he appointed a special counsel to take over the decisionmaking authority in the case,” Bromwich said. “So I think he’s found out it’s a no-win situation for him. And I think he understands that.”  

The Justice Department has its own regulations about when to appoint a special counsel to oversee an investigation, but it ultimately gives the attorney general broad discretion over when to do so. 

Andrew Weissmann, who was one of the lead prosecutors on the Mueller investigation, said he suspects the Justice Department long ago evaluated whether to bring in a special counsel and decided against it but is reevaluating given Trump’s potential announcement. 

“I think it’s responsible if they’re looking at it again,” he said.   

“To me, I took that as that is what a Merrick Garland Justice Department would do. It’s a rule-of-law place. There’s a regulation that says you’re supposed to examine these issues. The facts may change, so they need to look to see whether their assessment should change if the facts change. And I suspect they’ll come out at the same place,” he said. 

He added that an early announcement of a presidential run by Trump would change little since Trump is the “de facto leader of the Republican Party.”  

“So I just didn’t know that the analysis changes a lot,” Weissmann said. 

A campaign kickoff by Trump would only increase timeline pressures on the Justice Department. Experts say appointing a special counsel would be a lengthy process for a Justice Department that doesn’t have time to lose.

Beyond recruiting someone to take the role, a special counsel would need time to get read into the two Trump investigations — one for his mishandling of presidential records found at Mar-a-Lago and the other involving his role in the Jan. 6, 2021, attack on the Capitol.  

 “It would slow it down enormously. And so one, I think, pretty strong argument is you want as little as possible of this investigation and any charges to overlap with the homestretch of the presidential campaign,” Bromwich said. 

And it would likely require significant Justice Department resources anyway.

“I think that appointing a special counsel would in many ways be more symbolic than real because they not only have to rely on work already done by Justice Department lawyers. They probably would have to have many of those lawyers detail to the special counsel in order to continue doing the work because that’s where the expertise resides,” Bromwich added.

Robbins said such a move would aid arguments that the special counsel is nothing more than a “disingenuous fig leaf.” 

It’s also not clear who the special counsel could be or if would have appeal to a strong candidate. 

“If there was anybody whose credibility as a nonpartisan, right-down-the-middle prosecutor that should have been impregnable, it was Bob Mueller. Highly thought of on both sides of the aisle, FBI director approved for an extension by both sides of the aisle — the whole drill. It didn’t affect the attack on him from Trump World one iota,” Robbins said. 

Weissmann said he thinks the environment for special counsels has only gotten worse since he aided with Mueller’s probe into Trump and Russia. 

“There’s a playbook of vilifying a special counsel. I never thought we could be in a more volatile [time] than when Robert Mueller was special counsel. Even though there were lots of lots of threats, I think it’s gone to a new level, which is hard to imagine,” he said. 

Robbins, however, also sees little benefit to looking outside the Justice Department when what he sees as the perfect man for the moment is already in the job. 

“How do you find somebody who is better suited to appear above the fray than Merrick Garland, a former highly respected, mild-mannered, by-the-book, famously judicious, famously restrained court of appeals justice [who] has at every turn endeavored to avoid presenting as a partisan and who is not a partisan by nature,” he said.  

“How do you find somebody who was better than that to serve as a nonpartisan face of such a delicate prosecution?” Robbins asked. 

“Not easy,” he added.