The Daily - Trump Faces a New Special Counsel

Episode Date: November 21, 2022

Donald J. Trump is running for president again. Donald J. Trump is back on Twitter again. And now a special prosecutor has been appointed to investigate Donald J. Trump again.In the saga of the Trump investigations, there seem to be recurring rhythms and patterns. Here’s what to know about the latest developments.Guest: Michael S. Schmidt, a Washington correspondent for The New York Times.Background reading: The two major criminal investigations involving Mr. Trump examine his role in the lead up to Jan. 6 and his decision to retain sensitive government documents at his home in Florida.What is it that makes a special counsel “special”?For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From New York Times, I'm Michael Bolbaro. This is The Daily. On Friday, in a moment of political déjà vu, the Attorney General appointed a special counsel to investigate alleged criminality by Donald Trump. Criminality by Donald Trump. Today, Mike Schmidt, who covered the last special counsel to investigate Trump, on what we need to know about the new one. It's Monday, November 21st. So we can't see you, which is fine. No, hold on. There he is. Okay.

Michael, thank you for joining us on a Sunday morning. It's good to be here. Always the same response. It's good to be here. So, Mike, I woke up this morning thinking that it really feels like we're in some kind of time machine. Because we have Donald Trump running for president again. We have Donald Trump back on Twitter again.

And now a special prosecutor has been appointed to investigate Donald Trump again. And it was this feeling of like, what year exactly are we living in? And it was this feeling of like, what year exactly are we living in? There are certain rhythms and patterns to the Trump story that I've noticed over the past, I don't know how many years it is at this point, five, six years. Yeah. It sort of repeats itself over and over again. Each time the story is a little different, but it sort of has a general theme to it.

So we had seen this before. We had seen a special counsel before. And I'm not so surprised to see another one again. So let's talk about all that. And of course, the reason we're talking to you, as you've just hinted at, is that you lived through this once before when we had a special counsel, Robert Mueller, appointed to investigate Donald Trump's connections to Russia. You wrote about that day in, day out. It was kind of your bead. So tell us how it is that the current Attorney General Merrick Garland arrived at this decision to appoint a new special counsel. So you'll remember the Justice Department under Attorney General Merrick Garland has been conducting two different investigations into Trump. The first one is an investigation into his role in January 6.

What was Donald Trump's role in the efforts to overturn the election? And was it criminal? Right. And we've talked with you about that a lot. You've actually done some interviews for The Daily about that. This is a kind of parallel investigation that the DOJ is doing to what Congress is doing with its January 6th committee. Correct. The second investigation that the Justice Department is doing is into whether Trump broke the law when he took hundreds of pages of classified documents from the White House and took them to his home slash club in Mar-a-Lago. And whether in connection

with that, as the Justice Department and National Archives tried to get them back, he obstructed justice. So two major investigations, both of which could lead to criminal charges of ex-President Donald Trump. Both of which are examining the enormous question of whether the President of the United States and his associates and allies broke the law. Right, and because Merrick Garland, this attorney general, works for President Biden, Trump's opponent in the last election, that has put Garland,

as the person overseeing these two investigations you just mentioned, in a very awkward position. Yes. From the start, it's been unusual. The attorney general for the president of the United States who beat Donald Trump in the last election is investigating Donald Trump. Right. So you've had this situation where basically the new regime is investigating the old one. And while that has been unusual, the attorney general has thought that the department could handle it, that the department could conduct that investigation on its own without having to take any special moves to try and insulate it from the perception of politics. So when did that start to change exactly? Well, we really don't know, but we know a couple of things.

The first is something that was going on in the background. My colleagues and I reported earlier this year that the president was privately complaining about his attorney general, saying that he thought his attorney general was moving too slowly on the investigations of Trump and January 6th, that the attorney general was acting more like a ponderous judge than a fearless prosecutor. judge than a fearless prosecutor. And while there was no indication that the president had told the attorney general this, there was behind the scenes some dissatisfaction amongst the president and his allies with the chief federal law enforcement official. Right. And of course, Mike, with your story, you told Attorney General Garland how President Biden felt. Look, there's nothing unusual about a president of the United States complaining about his attorney general. But it gave you some sense of how Biden viewed

the way his attorney general was performing. And just how absolutely inherently tricky this dynamic is. Correct. Okay. The second thing was a much more publicly dramatic thing. In order to make America great and glorious again, I am tonight announcing my candidacy for president of the United States. And that was Donald Trump standing up at Mar-a-Lago this week and announcing that he is again running for the president of the United States. But as I've said before, the gravest threats to our civilization are not from abroad, but from within. None is greater than the weaponization of the justice system, the FBI and the DOJ. So at that moment, a situation that had been unusual, right?

That situation then became a current president's attorney general investigating his opponent in the coming election. Right. And we talked to Maggie Haberman about this, Mike. Donald Trump probably well understood that once he announced he was going to complicate these investigations. In fact, Maggie's reporting suggests that Trump raced ahead to announce his candidacy in part to complicate these investigations. Sure. And whatever the motivations were, 72 hours after Trump announces that he's running for president again. Good afternoon. I'm here today to announce the appointment of a special counsel in connection with two ongoing criminal investigations that have received significant public attention.

Merrick Garland is standing behind the podium at the briefing room at the Justice Department making this announcement. 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. Right. So explain how a special counsel and the appointment of one is supposed to solve

for the problems that you just described of a perceived conflict of interest that Garland faces here now that Trump is running against his boss, Joe Biden. The department does not have many tools to create distance between partisan politics, the perception of it, and the fruits of an investigation. At the end of the day, the Justice Department is run by political appointees who are put there by the President of the United States.

What the department does have is the special counsel regulations, which allow the attorney general to appoint an outsider of sorts to lead a politically sensitive investigation. And as a special counsel, there are some additional provisions that was overruled by the department, by those political appointees running the department, the Justice Department would have to tell Congress about that. Interesting. So it's sort of a built-in piece of oversight that if the special counsel wants to take a certain move and is prevented from doing that, then Congress is told about it and by extension, the public. In other words, Garland, even if he wanted to, couldn't snuff out something that a special

counsel wanted to do, couldn't stop the investigation or derail it without Congress having the ability to find out, publicize it, embarrass the Department of Justice. All of this would seem to serve as a major deterrent to the attorney general from meddling in a special counsel's investigation. And because of that, to ensure that that doesn't happen, the special counsel operates with a bit more autonomy than your regular old federal prosecutor's office. It's not that Garland steps away. It's that Garland creates sort of a pop-up U.S. attorney's office

that allows the investigation to proceed. Garland still has a say over what major decisions that office makes. That special counsel still reports up through the department. But the special counsel is doing it with a bit more of that autonomy and that provision in the background that if the special counsel wanted to do something and Garland and the political appointees at the department overruled them, that Congress would be told about it. But Mike, we're talking here about Donald Trump, right, who was never going to accept

any investigation into him as fair. We know that because he attacked the last special counsel to investigate him, Robert Mueller, relentlessly. I mean, so relentlessly that by the end of the special counsel investigation into Russia, many Republicans saw that probe as illegitimate. So what makes Garland think that a special counsel here is going to remotely satisfy Donald Trump in seeing these two investigations as somehow independent now? I'm not sure that Donald Trump is necessarily the audience for this. Donald Trump was able to take Robert Mueller, a registered Republican with one of the cleanest backgrounds in American law

enforcement history, and turned him into the leader of a witch hunt. So I'm not sure that Garland necessarily had Trump in mind. Certainly if he did, it's pretty quaint. The idea that something like this, putting distance between the politics of the moment and the fruits of an investigation, would have any impact on Donald Trump and his supporters who have already attacked this investigation as directed by the president of the United States. But it was one of the only options that Garland had to put some arm's length distance between himself, the political appointees who run the department, and these investigations. So I'm just thinking about this job now that you have laid this all out.

The person who's going to be taking this role of special counsel has to come in cold to these two high-profile investigations into Trump that are asking, as you said, the biggest, naughtiest question of all, which is, can and should he be charged with crimes? And has to do so while withstanding tremendous, probably public abuse from Trump, and the glare of every journalist

in the world watching over his or her shoulder. So who is the lucky person tapped to do this job? You're right. A lot of people are not lining up for this job, and a lot of people may not even have the credentials for it. But the Justice Department and Garland think they have found that person in a little-known, long-time federal prosecutor named Jack Smith. We'll be right back. So Mike, tell us about Jack Smith and why the Department of Justice thinks he's the right person for the special counsel job. So Jack Smith has had a career that at least looks like he is the fair minded, hard charging federal prosecutor right out of central casting.

And that's what the Justice Department wants us to think of him as. In the 90s, after graduating from Harvard Law School, he started working in the Manhattan District Attorney's Office. He moved up to become a federal prosecutor in Brooklyn. He established himself as someone who had a lot of confidence, but was fair-minded and even described by some as creative at trying to bring cases. He rose up to be in charge of the Justice Department's Public Integrity Unit in Washington, the part of the department that looks at the very thorny questions of whether politicians committed wrongdoing. Mike, I'm curious which investigations that Smith has overseen feel especially relevant for the job he's about to take now. Well, there is nothing that can prepare you for this. This is an investigation and an endeavor that will forever change his life.

So nothing can teach you what it's like to investigate a former president who's running for president, who's going to do everything he can to demonize you. That said, he oversaw the prosecution of the governor of Virginia, Bob McDonald, on corruption charges. It was a complicated case that the line prosecutors won at the trial, but was eventually overturned by the Supreme Court. trial but was eventually overturned by the Supreme Court. He also oversaw the investigation of the former top Republican in the House, Tom DeLay, an investigation that ended up with the Justice Department not bringing charges. He oversaw the prosecution of a Republican member of Congress from Arizona, a case that Donald Trump ultimately would pardon the member for when Trump was president. Interesting. These are complicated cases that looked at politicians, wrongdoing of politicians, in some of them in which the department cleanly was able to bring a case,

and other ones where the department had to walk away from an expansive investigation. So what you're saying is Smith understands how to bring a complex case against a public official or an ex-public official and very much understands the controversy and the legal headaches and the publicity that inevitably accompanies those prosecutions. Correct. Okay, so Mike, what has been the reaction so far to the appointment of Jack Smith? Not surprisingly, Trump has attacked him, depicted him as a member of the left, and used it to fuel his grievances.

So exactly the script we'd expect Trump to follow, he's following on this. So what exactly happens now? Because once Robert Mueller was appointed as special counsel back in 2017, and I remember talking to you about that announcement, Mueller seemed to more or less go into a bunker for a long time. And we didn't hear a lot from him until pretty much his investigation was over. Do we have any sense which of these two investigations Smith is likely to be most focused on and which of them has the strongest chance of being wrapped up first and potentially producing a criminal charge against Trump? chance of being wrapped up first and potentially producing a criminal charge against Trump?

My guess is he'll be focused equally on both of them. The one that has moved faster is the Mar-a-Lago classified documents investigation. The evidence in that case seems to be a little clearer. The law is a little more straightforward. And former federal prosecutors would say that a decision there would be something that would be easier for a prosecutor to make than the more complicated January 6th case. Do those prosecutors you talk to think that the appointment of a special counsel suggests that either of those cases, perhaps especially the Mar-a-Lago classified document case, is moving towards some sort of a charge? Because going to the trouble of appointing a special counsel does suggest that the cases are pretty well along. I don't think this decision should be interpreted as a clear-cut sign that charges are going to be brought. As I've learned in covering all these investigations of Trump, it's very difficult to charge someone like a former president of the United States. Right. And in fact, I think that as we sit here today, we should be prepared for the fact that

maybe in neither of these cases, charges are brought. And that's actually another reason why some people think it was a prudent thing for Garland to appoint a special counsel. Explain that. Because if these investigations end up with the prosecutors concluding that they do not have enough to charge, then a significant portion of the country, the left, Democrats, anti-Trump Republicans, who have already made up their mind about Trump's criminality, are going to cry foul. Right.

And by having a special counsel, Garland will be able to say, this longtime federal prosecutor who stared down war criminals in The Hague has looked at this question, looked at the evidence and the facts, and made a decision that there's not enough to charge. And that could potentially give Garland just a bit more of a shield as he tries to explain why the department hasn't indicted Trump. Interesting. So one way to look at the special counsel that Garland just appointed is that it's designed to insulate him and by extension, the Biden administration from blowback if and when they do decide to prosecute Trump, Biden's former and now current rival. But another way

it could insulate Garland, you're saying, is if they decide not to prosecute Trump. And there's inevitably blowback from Democrats and from the left. Yes, but the more that we go through this, the more that I realize that Garland is probably screwed. Because no matter what is decided, whether Trump is charged or not, a large segment of the population will think it's wrong and politically motivated. And a special counsel can't solve the problem at the heart of the moment. can't solve the problem at the heart of the moment, which is that you have the Justice Department under a sitting president investigating his rival for the presidency. Right. By nature, that looks and feels political.

And there's really no way around that perception, whether it's Garland conducting this investigation, a special counsel, or Elliot Ness. Having a special counsel is probably Garland's best tool, but I'm not sure anyone thinks it's sufficient. Well, Mike, thank you very much. As always, we appreciate it. Thanks for having me. We'll be right back. Here's what else you need to know today. Initial evidence and interviews indicate that the suspect entered Club Q and immediately began shooting at people inside as he moved further into the club. Police in Colorado Springs

are preparing to charge a 22-year-old man with killing at least five people and injuring another 18 inside an LGBTQ nightclub on Saturday night. During a news conference, officials praised patrons inside the club for bringing the rampage to an end. While the suspect was inside of the club, at least two heroic people inside the club confronted and fought with the suspect and were able to stop the suspect

from continuing to kill and harm others. We owe them a great debt of thanks." And the latest round of global climate talks ended with a historic agreement that will establish a fund to help poor countries cope with climate disasters made worse by the greenhouse gases from wealthy countries. The fund is seen as a major breakthrough because for decades rich industrialized countries including the US have resisted compensating developing countries for the storms, heat waves and droughts linked to rising temperatures. The question now is whether wealthy countries will actually put money into the fund.

Today's episode was produced by Eric Krupke and Will Reed. It was edited by Mark George, contains original music by Marion Lozano and Rowan Nemisto, and was engineered by Marion Lozano and Rowan Nemisto and was engineered by Marion Lozano. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.