So Biden needs to seek justice when it comes to Trump – but he also needs to make sure that all prosecution decisions about Trump are made in a way that restores public confidence in the Justice Department, rather than making it seem like Trump is another political one Arm of the White House.
Biden has promised to stay clear of any prosecutor’s decision, but that won’t be enough. Former President Barack Obama stayed out of the investigation against Hillary Clinton for using a private email server, but that didn’t stop speculation about the role of then Attorney General Loretta Lynch.
However, Biden will have a tool with which to pursue justice while ensuring that the process does not appear to be compromised by politics. That instrument is the special advisor – a prosecutor who is appointed not by Biden but by his attorney general and who has a degree of independence from the administration. The Special Adviser should be a professional attorney unrelated to Biden or his team, and the Attorney General should publicly state in advance that he or she does not intend to restrict the Special Adviser and will follow his recommendation.
Unlike the recent investigation by former Special Envoy Robert Mueller, the scope of the Special Envoy’s powers should be publicized at the start of the investigation in a manner that reveals as much as possible without violating the grand jury’s rules of secrecy. There should be no question or controversy about the scope of the Special Envoy’s powers, as was the case with the Mueller inquiry.
Although special advisers are typically appointed based on a conflict of interest, such as an investigation by the President who appointed the Attorney General, the Regulations provide that a special advisor may be appointed due to “other exceptional circumstances”. The investigation and possible prosecution of the youngest former president is certainly an exceptional circumstance.
It is, of course, impossible to make a decision to prosecute Trump in a way that will not be criticized by Trump and his allies without pardoning him or giving him a passport altogether. The appointment of a special adviser, however, removes power from the Biden commissioners and places them in the hands of someone who is non-partisan and not bound by the administration. This is the best step for the country and the best realistic outcome Republicans can expect.
Federal criminal investigations often take a long time. Trump is a special case, however, as some of Trump’s behaviors during the Mueller investigation have already been investigated and documented by Mueller’s team. Any prosecutor could review their work and decide whether Trump should be prosecuted for obstruction of justice.
In May 2019, I was one of more than 1,000 former federal attorneys who signed a letter Trump would be charged with obstruction of justice if he were not president. It cannot be a serious question that there is enough evidence to accuse Trump of obstruction of justice, and leaving office does not release him from accountability.
However, this is not the only consideration for a prosecutor. The special advisor must also determine, according to Ministry of Justice policywhether there is a “significant federal interest” in the prosecution and whether the evidence is sufficient not only to indict Trump but also to “obtain and uphold a conviction”.