As a federal defense attorney, I have been asked over the past week to explain the appointment of Special Counsel in the Trump investigations. First, in general, at the federal lever, a Special Counsel (sometimes referred to as a “Special Prosecutor”), is a lawyer appointed by the Department of Justice to lead an independent investigation of potential federal criminal wrongdoing, and then potentially prosecute any such federal crimes.
The Federal Regulations governing the appointment of Special Counsel require appointment where: 1) the Attorney General or acting Attorney General determines that the criminal investigation of a person or a “matter” is warranted: 2) that the investigation or prosecution of that person or matter by the DOJ would either present a conflict of interest, or other “extraordinary circumstances;” and 3) it would be in the “public interest” to appoint such outside independent counsel. Those Regulations can be found at § 600.1 C.F.R.
Based upon those Regulations, United States Attorney General Merrick Garland appointed as Special Counsel, former federal prosecutor Jack Smith. The two matters that Special Counsel Smith has been appointed to investigate and possibly bring prosecutions arising out of are: first, whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2020, and second, the investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation. In other words, the post-Presidential elections issues, including but not limited to the January 6 riots, and the Mara Lago document issues.
Based upon the plain language of the Regulations, it is not clear that there actually existed a conflict of interest necessitating the appointment of Special Counsel. However, in light of the fact that former President Trump is the target, or at least one of the potential targets of those two investigations, the perception of a conflict of interest was presented. This is particularly true where AG Garland was appointed by Trump’s opponent, President Biden, and has a reporting relationship to that President such that the President could even fire him. Therefore, these are the type of extraordinary circumstances where the appointment of Special Counsel was clearly warranted.
This appointment has to be viewed by former President Trump and his defense team as a negative event. Attorney Smith will be able to devote his full-time efforts to the two investigations. More importantly, he has a reputation for being willing to charge high-ranking political figures, and take the cases to trial – regardless of the politics and public pressures involved. All that said, it will still probably be months before the public knows who, and to what extent, Indictments will be brought in connection with those two investigations.
Written by Michael Leonard
Leonard Trial Lawyers
November 21, 2022