The Justice Department is not expected to appoint an outsider to serve as special counsel to handle politically sensitive criminal investigations, but will likely deputize a US Attorney to handle such matters if the need arises, according to a source familiar with the strategy.
On Friday, President Donald Trump once again called for a special prosecutor to investigate former President Joe Biden and aired unfounded claims of election fraud in the 2020 presidential election.
“A Special Prosecutor must be appointed. This cannot be allowed to happen again in the United States of America! Let the work begin!” he wrote on Truth Social.
The president has repeatedly called for a special counsel to investigate his predecessor over a number of issues.
“The whole purpose of the special counsel regime is to appoint a politically neutral outsider who can bring independence and credibility to a case,” said Elie Honig, a CNN senior legal analyst and author of a forthcoming book on the history of special counsels and independent prosecutions. “To choose a Trump-appointed US Attorney will, at a minimum, create the appearance that that person is biased in favor of Trump and his political agenda.”
The Justice Department is already investigating some of Biden’s actions while in office as part of its “Weaponization Working Group.”
On her first day in office, Attorney General Pam Bondi issued a memo establishing the group, which would focus on examining the state and federal investigations into Trump as well as the prosecutions related to the US Capitol riot on January 6, 2021, and other right-wing priorities.
Ed Martin, who failed to secure confirmation as US Attorney for Washington, DC, now oversees that effort, which has expanded to include subjects such as pardons issued by former President Joe Biden and other aspects of his administration.
CNN previously reported that Martin sent a letter to the National Archives requesting information about White House operations under the Biden administration. He is also seeking information related to Operation Crossfire Hurricane, the code name for the investigation into links between the 2016 Trump campaign and Russia.
It is expected that if the department deems that if any of these matters need to be escalated to a full-blown criminal investigation – that work will be outsourced to a US Attorney. The administration currently does not have any Senate-confirmed US Attorneys, but they do have nominees working in offices across the country.
A Justice Department spokesman declined to comment.
What is a special counsel?
The special counsel role was created through federal regulation to be used when there are conflicts of interest for the Department handling an investigation and it “would be in the public interest to appoint an outside special counsel.”
There have been several notable special counsels in the past few years, including Robert Mueller who was appointed by then-deputy Attorney General Rod Rosenstein to investigate the Russian government’s interference with the 2016 presidential election. Mueller had previously served as the FBI director from 2001 to 2013.
Trump has repeated railed against special counsels. In Mueller’s final report, Trump is quoted saying, “Everyone tells me if you get one of these independent counsels, it ruins your presidency. It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.”
Jack Smith was appointed by Attorney General Merrick Garland to investigate Trump for allegedly interfering with the 2020 election and the January 6, 2021, attack on the US Capitol, and for his allegedly mishandling of classified documents. Smith had also previously served as a federal prosecutor and was working at The Hague at the time he was tapped for this position.
In July 2024, Judge Aileen Cannon, who oversaw Trump’s classified documents case, ruled that Smith’s appointment was unconstitutional under the Appropriations Clause, which determines how the federal government is funded.
Cannon also said that Smith was unlawfully appointed by Garland. “For more than 18 months, Special Counsel Smith’s investigation and prosecution has been financed by substantial funds drawn from the Treasury without statutory authorization, and to try to rewrite history at this point seems near impossible,” Cannon wrote when she dismissed the case.
Smith appealed the controversial ruling, but after Trump was reelected, he withdrew both cases against the president-elect.
The nature of special counsels has evolved over time – under the Ethics in Government Act of 1978, Congress allowed for appointment of “special prosecutors,” which later became known as “independent counsels.” These individuals were appointed by specially selected three-judge panel and were outside-government appointees.
Ultimately, the law expired in 1999 after much debate about the cost and scope of special prosecutors, especially after the Kenneth Starr-led investigation of President Bill Clinton in the 1990s.
When the law expired, the Justice Department created a new regulation that allowed the Attorney General to appoint a “special counsel” from outside the federal government. The Justice Department determined that special counsels would be appointed for investigations that would have too much conflict of interest to operate under normal agency guidelines.
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