What the appointment of a special counsel means for Trump’s legal troubles

Geoff Bennett:

We return now to Attorney General Merrick Garland's appointment of a new special counsel to head of investigations involving former President Donald Trump. Garland tapped longtime federal prosecutor Jack Smith as special counsel to oversee the criminal investigations into the retention of National Defense Information at Trump's Mar-a-Lago resort and parts of the January 6 insurrection.

Smith has investigated war crimes at the International Criminal Court at The Hague, and he investigated public corruption cases as head of the DOJ Public Integrity Section. His career as a criminal prosecutor spans some 30 years. Smith's appointment came three days after Trump launched his third run for the White House. For more on this we turn to former Acting U.S. Solicitor General Neal Katyal.

Neal, it's always great to have you on the program. Thanks for being back with us.

Neal Katyal, Former Acting U.S. Solicitor General:

Thank you for having me.

Geoff Bennett:

And as I understand it, as a young DOJ staffer, you actually helped write the Special Counsel regulations. So, given that in your background, in your experience, do you see this as a necessary step?

Neal Katyal:

I definitely don't see it as necessary. I think I can understand it. Though, I think in the end, I think it's a mistake for the Attorney General to do so. So, the Special Counsel regulations are designed really to prevent a government cover up. The basic idea which we were worried about back in 1999, was that an attorney general might not be willing to investigate his boss or others at the White House, who were responsible for his elevation to be the attorney general.

And so, what the regulations provided for the Attorney General to go outside the department and have an investigation by someone else, that was really the paradigmatic case. Here that investigation particularly into the Mar-a-Lago stolen unclassified and national security documents, that investigation is already basically happened. So, you don't have the fears of a cover up you did before. And the idea that, you know, as Attorney General Garland said, there might be a conflict of interest because president — former President Trump has announced he's running for office, just to me doesn't really hold water. That's not the type of conflict I think that we were thinking about back then.

Geoff Bennett:

So then, is the Attorney General doing this for appearances, then?

Neal Katyal:

I can speak to it. I obviously have great, great respect for the Attorney General. I just don't think that if it is based on appearances, that this is likely to actually reduce any of the criticism that he's likely to face because under the Special Counsel regulations, if this special counsel Jack Smith does call for an indictment, who has to sign off on it?

Geoff Bennett:

Merrick Garland.

Neal Katyal:

None other than Merrick Garland. So, he's in the thick of it, no matter what. And we know that, you know, basically Donald Trump and his allies will attack anyone, including President Trump's own former Vice President, Michael Pence, if they feel like he — they're not doing the Trump's bidding is not being done. So, I think the attacks are going to come anyway.

Having said that, Jack Smith is an extraordinary great attorney and perfect for this task. I just don't think it was a necessary thing to do.

Geoff Bennett:

What more can you tell us about Jack Smith, this newly named Special Counsel?

Neal Katyal:

I think the most important thing to understand is that he ran the Public Integrity Section at the Justice Department. That's a kind of small elite office designed to basically go around the country and make sure that public officials aren't corrupt, aren't engaged in wrongdoing, those kinds of things. And, you know, the people who work in that office and who have run that office in the past are legendary people like Eric Holder, for — just to take one example.

So, I think it's a good sign. I think it's also a good sign that he's investigated war criminals and other, you know, high ranking people. So, he's got that kind of experience. At the end of the day. My big concern here is just the delay that bringing someone new at this late-stage will engender to the investigation.

With respect to the Mar-a-Lago piece of the investigation, it seems to me a fairly open and shut case. And so, the proof will be in the pudding. I sure hope that Mr. Smith reaches a decision soon. On the other half of the investigation, the January 6, the President Trump's possible involvement and complicity in those horrific events. I understand that's going to take more time. That's understandable, but we shouldn't let the hardness of the second one interfere with the easing, the kind of quick deed for a decision in the first part of Mar-a-Lago?

Geoff Bennett:

Well, a question about the timeline and the pace of these investigations, one of the reasons why Donald Trump announced a reelection bid in the first place. This is, according to people close to him, was to insulate himself from prosecution or at least, at the very least delay an indictment. How does the appointment of a special counsel affect the pace of the ongoing investigations? At least as you see it, because there's some analysis out there that suggests that this could actually speed things up?

Neal Katyal:

Right. So that's the $64,000 question. I find it hard to believe that bringing in someone new at this stage is going to speed things up. I don't understand the case for that. And one of the reasons I'm so critical of the Attorney General's decision here is I feel like it's rewarding Donald Trump for this maneuver on Tuesday of announcing his election early to try and forestall this criminal investigation.

At the end, I don't think it will, you know, prevent that from happening. You know, that you don't have some get out of jail immunity card just because you're running for office. But what is done is create some new procedural hoops that have to be jumped through. And my strong view is that those hoops should be jumped in really quickly by Mr. Smith, because the clock is ticking. And if we don't have a criminal trial, you know, in fairly short order, it risks being adjourned because of the '24 election.

Geoff Bennett:

Neal Katyal, thanks so much for being with us. We always appreciate your insights.

Neal Katyal:

Thank you for having me.