According to sources with knowledge of the matter, the Justice Department aims to decide whether to pursue charges against former President Donald J. Trump before the 2024 campaign heats up and is contemplating assigning a special counsel to supervise investigations of him if he runs again.
The agency is examining Mr. Trump’s participation in the attempts to overturn the results of the 2020 presidential election and the assault on the U.S. Capitol on January 6, as well as his preservation of sensitive government papers at his Florida property and resort. It has not reached a determination in either instance, but the investigation into the former president’s handling of the records is more simple since prosecutors have publicly highlighted possible offences for which he may be prosecuted.
Senior department officials and veteran prosecutors with the department’s national security division, along with the U.S. attorney’s office in South Florida, have spent the past few weeks quietly navigating the thicket of thorny issues required to file charges in the documents investigation, weighing evidence, analysing legal precedents, and weighing practical considerations such as the venue of a possible trial.
The inquiry has been hindered by Mr. Trump’s attempts in court to block the government’s access to the materials confiscated from his residence and by the department’s self-imposed 30-day freeze in serving subpoenas ahead of this year’s midterm elections.
Behind the scenes, though, prosecutors have been accumulating information and case law that may be used to compose a memorandum that would serve as the foundation for any prosecution. And those engaged in this endeavour are afraid that an indictment or prosecution of Mr. Trump during the campaign would create intense criticism that would undermine the department’s commitment to being seen as an impartial law enforcement agency.
Attorney General Merrick B. Garland and his colleagues have long discussed adding a layer of protection to the agency by appointing a special counsel, a seasoned prosecutor who would oversee the inquiry on a daily basis and be chosen by the attorney general. Even with the appointment of a special counsel, Mr. Garland and the department’s top leadership would still make any final decisions over whether to prosecute Mr. Trump.
Under federal law, a special counsel acts essentially as a pop-up U.S. attorney’s office with unlimited power over every element of an investigation under “exceptional circumstances” when the conventional line of command may be seen as posing a conflict of interest.
An attorney general retains the authority to accept or reject the advice of a special counsel. However, if Mr. Garland were to reject the counsel’s advice, he would be required to notify Congress as a measure to guarantee openness and independence.
CNN was the first news source to announce the department’s possibility of appointing a special counsel.
A spokesperson for the Justice Department did not immediately reply to a request for comment.
Some former officials and legal experts said that the appointment of a special counsel would allow Mr. Garland to choose an attorney to refute allegations of a political witch hunt.
The Justice Department on Wednesday gave Kash Patel, a close aide to Mr. Trump, immunity to testify before a federal grand jury concerning Mr. Trump’s handling of highly sensitive presidential documents.
It was the most recent indication that prosecutors are moving aggressively to collect the evidence necessary to determine whether the former president mishandled sensitive government documents and attempted to obstruct justice by concealing the location of materials he removed from the White House after leaving office.
He has vocally supported politicians that supported his claims about the 2020 election, although he has not yet stated his intention to run for re-election.
The status of the expansive inquiry into the events on January 6 remains unclear. Prosecutors have sought testimony and evidence from a number of individuals with ties to Mr. Trump, including attorneys such as John Eastman. However, authorities have not yet provided any public indications of what charges, if any, may be filed against Mr. Trump.
