How serious those discussions were and how long ago they occurred are 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 another presidential campaign as early as Tuesday night.
A Justice Department spokesman declined to comment. The people familiar with the matter spoke on the condition of anonymity to discuss internal deliberations.
Plenty of political candidates have been investigated while they ran for office — including Hillary Clinton, Trump’s Democratic opponent in 2016. The FBI investigation into Clinton’s use of a private email server was opened in mid-2015, continued throughout the primaries, was closed just before the nominating convention and then publicly reopened less than two weeks before Election Day.
No special counsel was appointed for that probe.
Justice Department regulations say the attorney general “will” appoint a special counsel, essentially a prosecutor handpicked to tackle a particularly criminal investigation, if a case meets several criteria, specifically: that an investigation is warranted in a way that presents a conflict of interest for the Justice Department “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.
Critically, even if a special counsel is appointed, that person would still report to the attorney general, who would have the ultimate authority on what to do about the evidence.
Garland made that 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 the focus of a long-running probe involving his business dealings and taxes.
“This is a fact and law determination in each case,” Garland told the lawmakers, adding that special counsels “are also employees of the Justice Department” — meaning they still report to the attorney general.
Sarah Isgur served as an adviser to Deputy Attorney General Rod J. Rosenstein in 2017, when he appointed Robert S. Mueller III a special counsel to investigate any possible ties between Russian election interference and the Trump campaign. She said she doesn’t think Garland has much choice but to name a special counsel if Trump runs for president.
“Unless they’ve already made the decision not to indict, I don’t see how the attorney general can get around the regulations here,” Isgur said. “He must appoint a special counsel where a criminal investigation would present a conflict of interest. And what bigger conflict is there for the political appointees at the Justice Department than whether to indict the guy running against their boss?”
While the Mueller special counsel appointment 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 Trump fired the FBI director, James B. Comey, and Trump gave an interview saying he was thinking about the Russia probe investigation when he made the decision to fire Comey. And behind the scenes, there was significant tension between FBI and Justice Department leaders over how to run the investigation.
It’s true that the current investigations involving Trump are being overseen by a Biden administration official. But it’s also the case that the FBI director, Christopher A. Wray, was appointed by Trump and is a Republican. Perhaps even more important, it is not certain that Biden will run again in 2024. The president has said he “intends” to run for reelection but has not made a decision. If he declined to seek a second term, that may reduce any potential conflict for the Justice Department.
Another difference between then and now is that Rosenstein and other senior Justice Department officials were just beginning to grapple with the facts of the Russia investigation when Mueller was appointed — unlike now, when Garland has been overseeing the Mar-a-Lago and Jan. 6 related investigations for many months.
On the other hand, it’s also possible that there is some as yet publicly unknown factual wrinkle that has emerged in the Mar-a-Lago or Jan. 6 cases that could increase officials’ concerns about potential conflicts of interest.
Matthew Miller, a Justice Department spokesman during the Obama administration, said he did not see any upside to appointing a special counsel now, after nearly two years of Trump and his allies blasting the Justice Department investigations as politically motivated.
“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. “Trump always benefits from turning everything into a circus and the way out of the circus is to not buy a ticket. 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.”
Other experts, like Mary McCord, a former senior national security official at the Justice Department, said the investigation has been going on for too long for Garland to now appoint a special counsel. “There are already people who say it is politically motivated,” she said. “You can’t really erase it if there is a special counsel.”
McCord noted that the Justice Department started its probe many months before Trump declared his candidacy. And since Biden has not yet announced if he will seek a second term, it would not be accurate to say the Justice Department launched 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. Saltzburg, a George Washington University law professor and a Justice Department official during the George H.W. Bush administration.
“If the attorney general picks a lawyer with prosecutorial experience and who is a Republican, a prosecution would go down a little easier than if the Justice Department were to bring a prosecution itself,” Saltzburg said.
But he cautioned there are potential downsides as well.
“You do not know how the prosecution will go,” he said. “And there is some risk that people will get the impression that the Justice Department appoints special counsels because it can’t be fair.”