Donald Trump's formal declaration of his 2024 presidential candidacy poses a number of tricky questions for the Justice Department, starting with whether to designate a special counsel to oversee investigations involving the former president, the Washington Post reports. A special counsel appointment has been discussed internally at DOJ in the run-up to Trump's announcement, but how serious and long ago those discussions were is not clear. The hypothetical is now real for Attorney General Merrick Garland, but that doesn't make it any less complicated.
Justice Department regulations say the attorney general “will” appoint a special counsel if a case meets several criteria, specifically: that an investigation is warranted in a way that presents a conflict of interest for the Justice Department “or other extraordinary circumstances,” and that under those circumstances “it would be in the public interest” to appoint a special counsel to handle the case. Even if a special counsel is named, that person would still report to Garland. Plenty of political candidates have been investigated while they ran for office, perhaps most notably Hillary Clinton, Trump's Democratic opponent in 2016 whose use of a private email server shadowed her entire campaign. Sarah Isgur, former adviser to Deputy Attorney General Rod J. Rosenstein in 2017, said Garland has little wiggle room. “Unless they’ve already made the decision not to indict, I don’t see how the attorney general can get around the regulations here,” Isgur said. “What bigger conflict is there for the political appointees at the Justice Department than whether to indict the guy running against their boss?” But Matthew Miller, a Justice Department spokesman during the Obama administration, said he did not see any benefits to appointing a special counsel now, since Trump and his allies have continually claimed the Justice Department investigations are politically motivated. “Trump always benefits from turning everything into a circus and the way out of the circus is to not buy a ticket. You are better off treating this case as business as usual, handled by [federal prosecutors] who report up to an attorney general who will defend it," Miller said.