Washington (CNN) — As Donald Trump moves closer to launching another presidential race after the midterm elections, Justice Department officials have discussed whether a Trump candidacy would create the need for a special prosecutor to oversee two ongoing federal investigations related to the former president, sources familiar with the matter tell CNN.
The Justice Department is also staffing its investigations with experienced prosecutors to be prepared for any decisions after the midterm elections, including the potentially unprecedented move to indict a former president.
In the weeks leading up to the election, the Justice Department has observed the traditional quiet period of not making any overt moves that might have political consequences. But behind the scenes, investigators have been keeping busy, using aggressive grand jury subpoenas and secret court battles to coerce witnesses into both the investigation into Trump’s efforts to nullify the 2020 election and his alleged mishandling of the national security documents kept in his Palm Beach home.
Now federal investigators are planning a post-election burst of activity in Trump-related investigations. That includes the prospect of indicting Trump associates, moves that could be complicated if Trump declares his candidacy for president.
“They can charge almost anyone if they want to,” said a defense attorney working on Jan. 6-related issues, adding that defense attorneys “have no idea” who will ultimately be charged.
“This is what’s scary,” the lawyer said.
Trump and his associates are also facing legal exposure in Georgia, where Fulton County District Attorney Fani Willis is investigating Trump’s efforts to nullify the 2020 election in the Peach State and hopes to conclude her investigation by End of the year.
Impeaching an active candidate for the White House would surely set off a political firestorm. And while no decision has been made on whether a special prosecutor might be needed in the future, Justice Department officials have debated whether doing so could insulate the Justice Department from accusations that the Joe Biden administration is targeting their main political rival, people familiar with the matter tell CNN.
Special prosecutors, of course, are not immune from political attacks. Both Robert Mueller’s Russia investigation and John Durham’s investigation into the origins of the FBI’s Russia investigation were the subject of scathing criticism from their opponents.
The Justice Department declined to comment for this article.
The incorporation of a group of experts
The Justice Department has brought in a group of experts to advise at a high level on the Trump investigations, according to people familiar with the moves.
Justice officials have turned to an old guard of former prosecutors from the Southern District of New York, bringing into the investigations Kansas City federal prosecutor and national security expert David Raskin, as well as David Rody, a prosecutor turned lawyer. defender who previously specialized in gang and conspiracy cases and has worked extensively with government aides.
Rody, whose involvement had not been previously reported, left a lucrative partnership at prestigious corporate defense firm Sidley Austin in recent weeks to become a senior attorney at the DOJ’s criminal division in Washington, according to his LinkedIn profile and sources familiar with the movement.
The Washington State Attorney’s Office team handling the day-to-day work of the Jan. 6 investigations is also growing, even as the office’s sedition cases against right-wing extremists go to trial.
Other prosecutors have joined the team for the January 6 investigations, including a senior prosecutor specializing in fraud and public corruption who has stepped down as a supervisor and joined the team, and a prosecutor with years of experience in the criminal appellate work now involved in some of the grand jury activities.
Taken together, the prosecutors’ reshuffling signals a serious and growing investigation into Trump and his inner circles.
Garland’s big decision on Trump
The decision to impeach Trump or his associates will ultimately rest with Attorney General Merrick Garland, whom President Joe Biden chose for the job because his track record as a judge provided him with some distance from partisan politics, after Republicans in the Senate blocked his nomination to the Supreme Court in 2016.
Several former prosecutors believe the facts exist for a potentially chargeable case. But Garland will have to navigate the politically dangerous and historic decision of how to approach the potential impeachment of a former president.
In March, Garland avoided answering a CNN question about the prospect of a special counsel for Trump-related investigations, but said the Justice Department “doesn’t shy away from cases that are controversial or sensitive or political.”
“What we will avoid and what we need to avoid is any partisan element in our decision-making on cases,” Garland said. “That’s what I’m trying to do to make sure that the Department’s decisions are made on the merits, and that they’re made on the facts and the law, and not based on any kind of partisan considerations.”
Garland’s difficult decisions go beyond Trump. The long investigation into Hunter Biden, the president’s son, is nearing completion, people briefed on the matter say. A final decision on the investigation of Florida Republican Rep. Matt Gaetz is also expected after prosecutors recommended not to press charges.
It likely won’t be long after the midterm elections before attention turns to the 2024 presidential race. That could spur top Justice Department officials to make crucial impeachment decisions as quickly as possible. including whether to bring charges against Trump himself or other high-level political activists, other sources familiar with the inner workings of the Justice Department say.
“They’re not going to press charges before they’re ready to,” said a former Justice Department official with some insight into the thinking around the investigations. “But there will be added pressure to finish the review” of the cases before the typical five-year window for the DOJ to file charges.
Complications in Georgia for Trump
Matters could also be complicated by the situation in Georgia, where Willis is investigating Trump’s efforts to overturn the results of the 2020 election in that country. Willis said she hopes to have an independent grand jury complete its investigative work by the end of the year.
Willis has observed his own version of a lull around the midterm elections and is looking to bring witnesses before the grand jury in the coming weeks. Previous sources told CNN that the indictments could come as soon as December.
Key Trump allies such as South Carolina Sen. Lindsey Graham and former White House Secretary General Mark Meadows are among the witnesses who have tried to fight subpoenas in the state investigation into efforts to interfere in the U.S. election. Georgian 2020.
How those disputes are resolved in Georgia — including whether courts compel testimony — could improve the DOJ’s ability to gather information, just as the Jan. 6 House select committee investigation added to the clues. DOJ investigation from inside the Trump White House.
A not so quiet period
The months leading up to the election have given little respite to the political and legal activity surrounding the investigations. The Washington District Attorney’s Office—still shouldering the bulk of the January 6 investigations—has grappled with burnout in its ranks as prosecutors prosecute or win guilty pleas for the more than 800 rioters who were in the Capitol grounds and are still seeking to indict hundreds more.
Trump has also thwarted efforts by the Justice Department to keep quiet in the weeks leading up to the election, leading to a constant barrage of headlines related to the investigation.
Trump’s legal team successfully launched a complicated court-led process to classify thousands of documents seized at Mar-a-Lago, to determine whether they are privileged and off limits to investigators. But the Justice Department and the intelligence community have had access for weeks to about 100 records marked classified that Trump had kept in Florida.
The outcome of the intelligence services’ review of those documents may determine whether criminal charges are filed, according to a source familiar with the Justice Department’s approach.
However, in both investigations, secret judicial activity never ceased, as the Justice Department tried to force at least five witnesses from Trump’s entourage to provide more information secretly in their grand jury investigations in Washington, according to reports. CNN previously reported.
On Tuesday, a federal judge ordered Trump adviser Kash Patel to testify before a grand jury investigating the handling of federal records at Mar-a-Lago, according to two people familiar with the investigation.
Judge Beryl Howell of the Washington District Court granted Patel immunity from prosecution for any information he provides to the investigation, another significant step that brings the Justice Department closer to possible prosecution in the case.
CNN’s Sara Murray, Paula Reid and Zachary Cohen contributed to this report.