"This will further delay accountability by months": Experts split as DOJ mulls Trump special counsel

Some legal experts had pushed for a special counsel months earlier but say now it's too late

By Areeba Shah

Staff Writer

Published November 4, 2022 1:32PM (EDT)

Former President Donald Trump | The Justice Department building (Photo illustration by Salon/Getty Images)
Former President Donald Trump | The Justice Department building (Photo illustration by Salon/Getty Images)

Justice Department officials have considered appointing a special counsel to oversee investigations into former President Donald Trump if he runs again, according to CNN.

Trump, who has hinted at a third campaign but hasn't formally declared his candidacy, remains under investigation for retaining sensitive government documents at his Mar-a-Lago home and his efforts to overturn the results of the 2020 election ahead of the Jan. 6 attack on the Capitol.

Top aides to Trump have been looking at the third week of November as an ideal time to announce his candidacy and have specifically discussed Nov. 14 as a launch date, two sources told CNN.

Investigators have remained busy in the weeks leading up to the midterm election, using grand jury subpoenas and secret court battles to compel testimony from witnesses involved in both investigations. At the same time, the Justice Department has been careful to not take any overt actions that may have political consequences. 


The DOJ recently added new prosecutors to the investigations, including national security expert David Raskin and prosecutor-turned-defense lawyer David Rody, who specialized in conspiracy and gang cases, according to CNN. 

Federal investigators are planning to move forward with the prospect of indictments of Trump's associates after the midterms, CNN reported. But if Trump declares a run for presidency, it could spark a political firestorm and generate criticism about the department's ability to enforce the law in a nonpartisan manner.

Attorney General Merrick Garland and his team have considered creating a layer of protection for the department and appointing a veteran prosecutor that would be in charge of running the day-to-day investigation, The New York Times reported. However, any decisions related to charging Trump would still be made by Garland and the department's senior leadership.

Some legal experts criticized the DOJ for not appointing a special counsel sooner.

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"DOJ should have appointed a special counsel two years ago," Richard Painter, a former top White House ethics lawyer, wrote on Twitter. "No man - not a president and not a former president - is above the law."

Others argued that the moment had already passed for the DOJ to appoint a special counsel in the cases.

"The news that DOJ is mulling the option... I urged 8 months ago is welcome, but I no longer think a special counsel is needed to assure the public that a decision by Garland to prosecute Trump would be independent of presidential politics," tweeted Harvard Law Professor Laurence Tribe.

Former federal prosecutor Richard Signorelli noted that some legal experts called for such an appointment in January 2021.

"This will further delay accountability by months," he predicted.

But former U.S. Attorney Harry Litman pointed out that the move "would make it very hard" for Trump to fire the special counsel "in the catastrophic event that he were to run and win."

Former federal prosecutor Renato Mariotti argued that the appointment "would be a good move."

Mariotti called for a special counsel days after the 2020 election in a Politico op-ed, arguing that "any prosecution of Trump, no matter how fair, will draw criticism from Trump's supporters in an already-divided nation."

"I believe it is the best approach even if Trump does not announce a run," Mariotti tweeted on Thursday. "It is important for the public to have confidence that any prosecutorial decision regarding Trump was made without politics playing a role."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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