The confetti had barely been swept away from the midterm election celebrations when Donald Trump announced that he would be running for president again in 2024. His candidacy raises a natural question—what happens now to the federal investigations into his conduct?
The Department of Justice is investigating Trump’s role in the Jan. 6, 2021 attack on the U.S. Capitol and related conduct. In addition, the DOJ is also investigating Trump’s retention of sensitive government documents at his Mar-a-Lago home. While Attorney General Merrick Garland frequently reminds us that “no person is above the law,” investigations become more complicated when they involve election sensitivities.
In such cases, two issues come into play—the application of the DOJ policy against interfering in elections and consideration of appointing a special counsel. Neither one should prevent Garland from proceeding full speed ahead in the investigations of Trump.
First, the DOJ policy states that prosecutors must always act with “fairness, neutrality, and non-partisanship.” For that reason, they are prohibited from “selecting the timing” of investigative steps or other action in a case “for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” Most prosecutors read the memo broadly to prohibit taking steps not only “for the purpose of” affecting an election, but that will have the effect of doing so. As a result, conventional wisdom says DOJ should lie low for about 60 days before an election involving someone who may be implicated in the case, lest they give the public the impression that the candidate is a crook when he lacks time to defend himself and clear his good name.
Here, Trump may have declared his candidacy so far in advance of the election to gain the upper hand in messaging about the investigation. If Trump is indicted in either or both cases, he can now say that he was charged only after announcing his efforts to unseat Joe Biden as president. The timing will allow him to play the victim and claim the investigations are partisan efforts to discredit him.
While this strategy may help him politically, it does not implicate the DOJ policy. Garland is unlikely to stand down this far before an election simply to prevent Trump from accusing him of partisanship. The earliest the policy would likely kick in is 60 days before the first primary election in January 2023, and even that is a matter of interpretation.
Second, federal regulations provide that a special counsel should be appointed from outside the U.S. government when an investigation presents a conflict of interest for the Department or “other extraordinary circumstances.” For example, in 2017, Robert Mueller was appointed to investigate connections between Russia and Trump’s 2016 presidential campaign because, as sitting president, Trump had the power to fire anyone at the Justice Department. Investigating your boss is a clear conflict of interest.
An argument could be made that a special counsel should be appointed to take over the investigations now that Trump is a candidate. DOJ officials would have an incentive to keep Biden in office to preserve their own jobs. But I think the better argument is that no special counsel is needed, and indeed, would harm the investigation at this stage.
First, Biden is not yet a candidate, and may not even run for re-election. Even if Biden runs, there is no guarantee that Trump will be the GOP nominee. At this point, he is running only for the opportunity to run in the general election.
Second, there is no precedent for appointing a special counsel to investigate a candidate for president, but there is precedent not to. When Hillary Clinton was investigated for mishandling classified information on her private e-mail server in 2016, no special counsel was appointed. On the other hand, appointing a special counsel to investigate anyone who announces their candidacy two years before election would create a dangerous precedent. Any natural-born citizen over the age of 35 can announce a campaign for president. They don’t even need to follow through because they can end their campaign at any time. Requiring a special counsel for every candidate who announces a campaign would be an easy way for the subject of an investigation to gum up the works.
Third, is there anyone who could serve as special counsel in these cases who would provide the public confidence the regulations contemplate? When Mueller was appointed, no one in the law was more respected for his integrity, but that did not stop Trump from disparaging him anyway, referring to his investigation as an “illegal and treasonous attack on our Country” and his team as “18 angry Democrats.” In our hyper-partisan world, critics of DOJ will not be satisfied with anyone who is willing to take the job.
And finally, the independence of a special counsel is a bit illusory anyway. The regulations permit the attorney general to overrule a decision by a special counsel. The only recourse is disclosure—the regulations provide that the attorney general must report to Congress when he rejects an action proposed by the special counsel. If the attorney general has the ability to influence the outcome of the investigation, then the special counsel is not truly independent.
In fact, appointment of a special counsel seems to undermine the very sentiments expressed in the election sensitivities policy—that DOJ lawyers are committed to “fairness, neutrality, and non-partisanship.” If so, then there is no need for a special counsel to assure the public of impartiality. Appointing a special counsel tends to suggest that DOJ lawyers cannot be fair. If Garland wants to promote the notion that the Justice Department acts “without fear or favor,” as he likes to say, then no special counsel can do the job any better than one of its career lawyers.
In addition to these legal factors, a practical consideration also militate against appointing a special counsel: time. Appointing a new lawyer to take over the investigation will create delay. A new lawyer would need to hire his own staff, all of whom would need time to get up to speed. If Trump is seeking to regain the Oval Office, then DOJ must complete not only the investigations, but the trials before Jan. 20, 2025. That’s when a newly sworn in President Trump could take the ultimate act of partisanship in prosecution—and pardon himself.
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