WASHINGTON — The Justice Department hopes to reach a decision on whether to bring charges against former President Donald J. Trump before the 2024 campaign heats up, and is considering appointing a special counsel to oversee investigations of him if he runs again, according to people familiar with the situation.
The department is investigating Mr. Trump’s role in the efforts to reverse the outcome of the 2020 election and the Jan. 6 attack on the U.S. Capitol, and his retention of sensitive government documents at his residence and resort in Florida. It has made no decision in either case, but the inquiry into the former president’s handling of the documents is more straightforward, with prosecutors having publicly cited potential crimes that could be charged.
Senior department officials and veteran prosecutors with the department’s national security division, in conjunction with the U.S. attorney’s office in South Florida, have spent recent weeks quietly navigating the thicket of thorny issues needed to file charges in the documents investigation, weighing evidence, analyzing legal precedents and mulling practical considerations such as the venue of a possible trial.
The investigation, while proceeding quickly by Justice Department standards, has been slowed by Mr. Trump’s efforts in court to restrict the government’s access to the files removed from his home, and by the department’s self-imposed 30-day pause in issuing subpoenas ahead of this year’s midterm elections.
But behind the scenes, prosecutors have been busily compiling evidence and case law that could be used to frame a memo that would be the basis for any prosecution. And some involved in that effort have become concerned that an indictment or trial of Mr. Trump during the campaign could generate fierce criticism that could undercut the department’s commitment to being seen as enforcing the law in a nonpartisan manner.
Attorney General Merrick B. Garland and his team have long considered creating a layer of protection for the department by tapping a special counsel, a veteran prosecutor appointed by Mr. Garland to run the day-to-day investigation. But even with the appointment of a special counsel, any final decisions on whether to charge Mr. Trump would still be made by Mr. Garland and the department’s senior leadership.
Under federal law, a special counsel functions, in essence, as a pop-up U.S. attorney’s office with broad discretion over every aspect of an investigation in “extraordinary circumstances” in which the normal chain of command could be seen as creating a conflict of interest.
An attorney general still has the right to approve or discard a special counsel’s recommendations. But if Mr. Garland were to reject the counsel’s recommendation, he would have to inform Congress, a safeguard intended to ensure transparency and autonomy.
The department’s consideration of a special counsel appointment was first reported by CNN.
A Justice Department spokesman did not immediately respond to a request for comment.
Recent special counsels include Robert S. Mueller III, who oversaw the investigation into connections between Mr. Trump’s 2016 campaign and Russia, and John H. Durham, who brought two unsuccessful prosecutions of officials accused of acting improperly in the Trump-Russia inquiry.
Some former officials and legal experts said the appointment of a special counsel would give Mr. Garland an opportunity to choose a lawyer to counter charges of a political witch hunt.
Mr. Garland “needs to have a lawyer with Republican pedigree on that team to send the message that this is not a political persecution,” said John P. Fishwick Jr., who served as U.S. attorney for the Western District of Virginia from 2015 to 2017.
“This is the most important criminal case in our country’s history. Ultimately, every person in the United States will be the jury in this case, and they will need to have confidence that the prosecution team reflects all of them,” he said.
On Wednesday, the Justice Department offered to allow Kash Patel, a close adviser to former Mr. Trump, to testify to a federal grand jury under a grant of immunity about Mr. Trump’s handling of highly sensitive presidential records.
It was the latest indication prosecutors are moving aggressively to gather the evidence necessary to determine whether the former president mishandled sensitive government documents and tried to obstruct justice by withholding information about the location of materials he removed from the White House after leaving office.
Mr. Trump, who remains the most powerful, most popular and best-funded Republican in the country, has repeatedly suggested he would run, including at a rally in Iowa on Thursday, when he said he would “very, very, very probably” run again.
He has been a vocal supporter of candidates who backed his lies about the 2020 election, but has not yet declared his intention to seek a second term.
The status of the sprawling investigation related to Jan. 6 remains less clear. Prosecutors have been seeking testimony and evidence from a number of people associated with Mr. Trump, including lawyers like John Eastman. But officials have yet to set out any public indications of what charges, if any, could ultimately be brought against Mr. Trump.
