Attorney General names special prosecutor to oversee Trump investigations

Amna Nawaz:

The Department of Justice investigations into former President Trump are entering a new phase. Attorney General Merrick Garland is appointing a special counsel to oversee two different probes, interference in the transfer of power around the counting of the Electoral College votes and the handling of classified documents at Trump's Florida home.

Lisa Desjardins has more details.

Lisa Desjardins:

That's right, Amna.

In his announcement, the attorney general said that he's taking this step to keep the investigation separate from politics.

Merrick Garland, U.S. Attorney General:

Based on recent developments, including the former president's announcement that he is a candidate for president in the next election and the sitting president's stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel.

Such an appointment underscores the department's commitment to both independence and accountability in particularly sensitive matters.

Lisa Desjardins:

For the task, Garland named veteran career prosecutor Jack Smith. He will determine whether to recommend criminal charges against the former president.

Following this all closely is Chuck Rosenberg, former U.S. attorney and senior FBI official.

These are kind of uncharted types of investigations we're talking about, both essentially whether a former president, a sitting president harmed or risked this country while in office, just after office. But the idea of a special counsel is not entirely new. It's not an independent counsel.

But how will that affect these investigations?

Chuck Rosenburg, Former U.S. Attorney:

It's not entirely new, you're right, Lisa.

And you're also right these are unprecedented circumstances. Think of it this way. There has been an ongoing investigation. FBI agents and prosecutors have been working on this for quite some time now. The new special counsel, Jack Smith, is going to be hopping aboard a moving bus.

It might slow down a little bit to get him up to speed. I think I'm mixing metaphors. But it's going to move forward. And he's going to learn the case quickly. But he also has a team of people who know the facts and can get him up to speed.

Lisa Desjardins:

Former President Trump has responded to FOX Digital, saying that this is unfair and political.

What can you tell us about the special counsel, Smith, and how he's handled high pressure, high stakes and power players trying to pressure investigations in the past?

Chuck Rosenburg:

It is neither unfair nor political.

Jack Smith has a reputation as an outstanding prosecutor, both in the Eastern District of New York in Brooklyn and as the head of the Public Integrity Section at the Department of Justice. He's handled big cases. He's handled them well and efficiently. And he will do the same thing here.

That doesn't foreshadow an outcome. His job is not to indict people, although that may happen. His job is to follow the facts and the law and make determinations about whether or not folks ought to be charged.

Lisa Desjardins:

We're going to be talking a lot about those determinations, I think, many months ahead.

But, for now, can you help us, as a prosecutor? What do you think is involved in a potential case about trying to overturn or interfere in an election? How high of a bar is there for charges in that kind of case?

Chuck Rosenburg:

Well, if you're talking about that type of case, then you have to prove intent.

And prosecutors will tell you that intent is always hard to prove. You have to get into someone's mind. And the way you do that is by talking to people around Mr. Trump. Who spoke to him? Who knows what he wanted? Who knows what he thought?

That means working your way up through many witnesses, essentially up a ladder. How far up you get, how far up it goes, we don't know yet. Those facts aren't in the public record. But proving intent is always a big, difficult task for federal prosecutors, not impossible, but difficult.

LISA DESJARDINS:

In this case, we have a lot of his own words as well that could come into play.

The attorney general felt, clearly, that a special counsel was needed here, extraordinary circumstances you and I were talking about earlier. But you disagree. Why?

Chuck Rosenburg:

I do.

I think this is a case that the Department of Justice can and should do. But let me be clear about one thing, Lisa. I think Merrick Garland is a very principled, honest, honorable man. The fact that I disagree with his decision doesn't change any of that.

Here's the problem. And you alluded to this earlier. An independent counsel — think Ken Starr in Whitewater — had full autonomy. A special counsel, think Bob Mueller and Russian interference in the 2016 presidential election — had a lot of independence, but not full autonomy.

So we kind of toggle back and forth between too much independence, Ken Starr, and not quite enough, Bob Mueller. And so, at the end of the day, Merrick Garland still owns this decision. At the end of the day, Merrick Garland makes the final determination. In other words, I don't think he's purchasing that much distance between himself and the special counsel.

Lisa Desjardins:

But walling off just this investigative part of this?

Chuck Rosenburg:

He is.

And, to be clear, Jack Smith, the special counsel, will be an independent actor up until the end, when determinations and decisions have to be made. Those decisions will rest with Merrick Garland.

Lisa Desjardins:

Does this all need to happen before the presidential election year begins? We have seen the Justice Department sensitive to that in the past.

Chuck Rosenburg:

I think the best way to think about it is, the sooner the better. But a special counsel can outlive and administration. John Durham was appointed special counsel by Bill Barr, previous administration, and is still working under the supervision of Merrick Garland.

Lisa Desjardins:

And just a quick — I think our viewers know this, but, at this point, it's clear that a former president can be charged for a crime, yes?

Chuck Rosenburg:

Absolutely. If they can prove it and the facts support it, absolutely.

Lisa Desjardins:

OK.

Chuck Rosenberg, thank you so much for your help.

CHUCK ROSENBERG:

My pleasure.