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Legal Experts Explain Why Appointing a Special Counsel to Investigate Trump for Jan. 6 Is Not as Easy as You Might Think

Donald Trump, Merrick Garland

Donald Trump, Merrick Garland

A New York Times editorial by a former high-ranking figure in George W. Bush’s Department of Justice has renewed controversy over whether Attorney General Merrick Garland should appoint a special counsel to investigate Donald Trump.

In a Monday editorial, Bush’s former Assistant Attorney General Jack Goldsmith grappled with three questions Garland must face if he were to decide to investigate and prosecute Trump in connection with the Jan. 6 attack on the U.S. Capitol. The first involved whether to tap a special counsel for what he described as “arguably” a conflict of interest. Garland’s “boss,” President Joe Biden, is Trump’s political rival, he noted.

In interviews with Law&Crime, multiple federal prosecutors and other expects took exception to that definition of a conflict. One, who spent more than a decade as a prosecutor in the Southern District of New York, found proposal both “unnecessary” and “not really workable.”

“The Special Counsel regulations make clear that it’s for instances where there’s a conflict or a perceived conflict,” former SDNY prosecutor Jennifer Rodgers, who is now a CNN legal analyst, noted in a phone interview.

“If any time the Attorney General and the Justice Department appoint a special counsel just because the person who’s the target of the investigation is a member of the opposite political parties, then that effectively prohibits them from doing any sort of public corruption or political type of cases,” said Rodgers, who spent 13 years as a federal prosecutor in an office known for prosecuting Democrats and Republicans alike.

Beyond disputing any perceived need for a special counsel, Rodgers described any hypothetical special counsel’s mission as “logistically impossible.” The Department of Justice’s most recent data roundup of the Jan. 6 investigation has counted some 840 arrests in nearly all of the 50 states and Washington, D.C. A special counsel’s investigation would potentially be tied to those cases but would have to remain independent from them.

“It’s just not really workable,” she said.

George Washington Law Professor Randall Eliason likewise saw little point in having a special counsel perform so much “catch-up work” with the U.S. Attorney’s Office for the District of Columbia, which has taken the lead on the Jan. 6 investigation.

“I think more importantly: This is a unique case when you’re talking about essentially prosecuting the former president, I’m not sure you can really pass that decision off to appointed special counsel,” Eliason said.

The decision is so “momentous,” he argued, that Garland should make the determination himself and give Biden the opportunity to overrule him if he decides to indict. Eliason acknowledged that such a move would be “unprecedented” but he played down concerns that it could play into Trump attacking any case as politically motivated.

“Given that attack is going to come anyway, I don’t know if this makes much of a marginal difference,” Eliason said.

Fordham Law Professor Jed Shugerman argued that regardless of the actuality of a political conflict, the appearance matters, and that’s why he believes a special prosecutor is necessary.

Only an “appearance of a conflict of interest” is needed to trigger a legal remedy, Shugerman said.

Shugerman believed that the fact that Garland was previously tapped for the Supreme Court by Barack Obama in a nomination stymied by Mitch McConnell (R-Ky.) raised another perception of a possible conflict.

Harry Sandick, a former SDNY prosecutor now working in white collar defense at the firm Patterson Belknap Webb & Tyler LLP, noted that the code of federal regulations calls for a special counsel when an investigation or prosecution “would present a conflict of interest for the Department or other extraordinary circumstances.”

“There is no actual ethical conflict,” Sandick noted, though he added that the second prong of the statute is more “amorphous” nod to what’s in the “public interest.”

The Times editorial that ignited the debate pondered two other pressing questions: whether there is adequate evidence and whether the national interest would be served by such a prosecution. A federal judge already has found that Trump “more likely than not” committed to serious crimes, obstruction of an official proceeding and conspiracy to defraud the United States, but the editorial notes that was under a far lower civil standard.

In its public hearings to date, the Jan. 6 Committee has been supplying more evidence while chipping away at Trump’s central defense—that he truly believed that the election has been stolen, even if that view contradicted the findings of more than 60 state and federal courts, the relevant experts in his administration, and every audit or recount to examine it. Committee Chair Bennie Thompson (D-Miss.) and Vice-Chair Liz Cheney (R-Wyo.) have asserted flatly Trump knew that was wrong, and his top lawyers and even family members told him so.

Shugerman, the Fordham professor, quoted the TV series The Wire to illustrate the stakes: “If you shoot for the king, you best not miss.”

“Even if you get a mistrial, you have to be aware that the flipside is that you wind up both martyring and vindicating Trump,” he said. “That has to be part of the calculus, too.”

The Times editorial noted that Trump would likely fight every unfavorable decision on appeal in bitterly disputed adversarial proceedings. Shugerman believes the window for a prosecution has passed because Trump would almost certainly drag out proceedings through at least the political primaries if not longer.

Though she agrees the clock is ticking, Rodgers takes a different view and believes an indictment could avoid that morass if it come early next year. She noted that the editorial pointed out that failing to prosecute could suggest that a president is “literally above the law, in defiance of the very notion of constitutional government.”

“That’s so detrimental to our nation and its founding principles that I think you have to try to press ahead if you have the proof, for the good of our democracy,” she said.

The Jan. 6 Committee’s next hearing began on Tuesday at 1 p.m., investigating Trump’s pressure campaign to reverse his defeat in Georgia. One of the key witnesses, Georgia Secretary of State Brad Raffensperger (R), is the man Trump exhorted to “find 11,780” votes, the precise number of ballots the 45th president needed to reverse his defeat. Other witnesses include Gabriel Sterling, Georgia’s voting system manager, and Wandrea “Shaye” Moss, a former election worker who sued Rudy Giuliani for allegedly targeting her in a smear campaign so vicious that it forced her to change her appearance and go into hiding. Moss is a winner of the John F. Kennedy Profile in Courage Award.

The hearing will also focus on what the committee describes as Trump’s fake electors scheme.

[Images via Seth Herald/Getty Images, Kevin Dietsch/Getty Images]

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."