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Dear Reader,

Donald Trump has formally announced his 2024 presidential candidacy. Anticipating just such a development, the Justice Department reportedly has had internal discussions about whether to appoint a special counsel to handle the ongoing Trump investigations. 

In my view, appointment of a special counsel would be both unnecessary and counterproductive. The better move by DOJ, at this point, is to let the prosecutors who have been working the case finish the job. A close look at the actual prosecutors who have recently joined the DOJ team tells us far more than any “special counsel” designation, or any other label that might be attached to the Department’s ongoing investigative efforts. 

First, let’s understand exactly what special counsel is, and is not. Those who recall the era of Robert Mueller action figures and “Justice is Coming” memes may think of special counsel as some type of extra-powerful, super-badass prosecutor. But in reality, there’s nothing all that special about special counsel. Like any of the 93 U.S. Attorneys across the country, special counsel holds the power to investigate, indict, and try criminal cases. And, like any other federal prosecutor, special counsel is bound by DOJ’s internal rules; you might recall Mueller tripping over the DOJ policy against indicting a sitting president, for example.

The difference is that, in some respects, special counsel has more independence and political insulation than a typical U.S. Attorney would from the bosses at Main Justice. Federal regulations specify that special counsel “shall not be subject to the day-to-day supervision” of the attorney general or other DOJ officials, but still must notify the AG of major case developments. The attorney general can request an explanation from special counsel on any investigative or prosecutorial move, and can overrule the special counsel; if so, the AG must file a written rationale with Congress. In short, special counsel is part of the Justice Department, only with a bit more leash than a typical U.S. Attorney.

Recent history tells us that appointment of special counsel by no means ensures prosecutorial success. Take, for example, our two most recent examples: Mueller, of course, and (can you name the other?)… that’s right, John Durham. Both failed, in different ways and for different reasons. 

Mueller spit the bit when he pulled up short and declined to say whether Trump had obstructed justice, opting instead for bureaucratic gibberish that amounted to: if I could clear him, I would, but I can’t, so I won’t, but I also won’t say if he committed a crime, because I never even thought about it, hope that helps. Bill Barr then filled the resulting vacuum and spun Mueller’s report into oblivion.

Then there’s Durham, the glaring, goateed tool of Trump-Barr “investigate the investigators” revenge fantasies, who still (somehow) sits as special counsel at this very moment. (Though Durham is often seen as a footnote of sorts to Mueller, Durham has now drawn out his work for far longer than Mueller did.) In the near-final calculus, Durham has racked up a pathetic anthill of vindictive prosecutions and not-guilty verdicts. The once-respected prosecutor has become an embarrassment to himself and to DOJ, and he stands as an example of what happens when politics infect prosecution.

So would special counsel be appropriate here? Under federal regulations, special counsel can be appointed where prosecution by DOJ would present a conflict of interest, or in other “extraordinary circumstances.” On the one hand, you can readily see the problem: now that Trump has announced his run, we’ll have Joe Biden’s attorney general investigating and potentially prosecuting the man who may well be running against Biden for the presidency in 2024. Even if one has faith in the integrity of Biden, Garland, and all the other key players here – it’s not great, optically. But if DOJ acknowledges that there is indeed a conflict, then the question arises: if there’s a problem now, then hasn’t it been a problem all along? Even before Trump’s official announcement, we already had Biden’s AG investigating the guy who (1) just ran against Biden in 2020 and (2) was universally expected to challenge him again in 2024. Yes, Trump’s announcement made it official, but we all knew it was coming. A Trump defender might even throw an appointment of special counsel right back at DOJ: if it’s an untenable conflict now, then it has been from the start, and this whole investigation is tainted. 

Here’s another problem: appointment of special counsel will cause delay – and DOJ simply doesn’t have the luxury of time anymore. I wrote in this space back in May 2022 that “[e]very day that passes makes a potential federal prosecution of Trump less likely to happen, and more fraught for the Justice Department if it does.” Now, that timing problem is six months and one presidential announcement more pronounced. And the timeline takes another hit if DOJ brings in an outsider who has to get up to speed, from square zero, on a sprawling, years-long investigation. (Note that the regulations specify that special counsel must come from outside the U.S. government, though Barr defied that rule when he picked Durham, who was then a U.S. Attorney.)

It might have been the right and smart move to appoint special counsel back in early 2021, shortly after Merrick Garland took office as attorney general; bring in an outsider to address potential conflicts of interest right off the bat, and let him get up to speed as the investigation developed. But now, the conflict issue has become fraught and complex, and there’s simply no time to spare.

If you’re one of the people hoping for a Trump indictment, don’t fret. The more important recent development, in my view, is that DOJ has now brought in two former SDNY prosecutors, David Raskin and David Rody, to work on the Mar-a-Lago case. I was an SDNY generation or so (roughly five years) behind Raskin and Rody, so I was just a pup when they were in their primes. I knew them to be among the most accomplished and aggressive prosecutors in the office. Raskin was a top terrorism prosecutor who was tapped to try Khalid Shaikh Mohammed (when that case was, briefly, slated to be tried in civilian court) and Rody was chief of the violent crimes unit. I saw both in action. They’re the real deal. 

DOJ signaled that it means business when it brought in these two. And I can’t see either of the Davids giving up their prior gigs and joining the Trump investigative team simply to decline prosecution. The question, of course, will be whether they can convince Garland to pull the trigger. 

So look past the glittery “special counsel” label. I don’t think Garland should, or will, make an appointment. The reality now is that plain old federal prosecutors, unadorned with fancy titles, can do everything that needs to be done. 

Stay Informed,

Elie