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Soon: AG Garland To Appoint Special Counsel To Oversee Trump Investigations; AG Garland Appoints Special Master To Oversee Trump Investigations. Aired 2-2:30p ET

Aired November 18, 2022 - 14:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

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ANNOUNCER: This is CNN Breaking News.

ALISYN CAMEROTA, CNN ANCHOR: Hello, everyone. I'm Alison Camerata. Welcome to CNN NEWSROOM.

VICTOR BLACKWELL, CNN ANCHOR: I'm Victor Blackwell.

We are following breaking news. Attorney General Merrick Garland will announce the appointment of a special counsel to oversee investigations into former President Donald Trump. This will be for key aspects of the criminal investigation into the January 6 event that ended with the retention of National Defense Information at Mar- a-Lago.

CAMEROTA: Joining us now, we have CNN is Evan Perez. He's at the Justice Department. We have CNN justice correspondent Jessica Schneider, CNN senior legal affairs correspondent Paul Reid, and CNN senior legal analyst Elie Honig. They all have new reporting to share with us. Evan, how did this decision come to pass?

EVAN PEREZ, Well, Victor and Alisyn, this was a decision that's been weeks in the -- in the making. The -- it was clear, certainly, that the former President, Donald Trump, was going to announce that he was going to run for office once more and that really put the pressure frankly, on the Justice Department trying to figure out a way to insulate or at least try to insulate these important investigations from the political maelstrom that we know for sure is going to be coming. And so, what the attorney general has done is that he has appointed a special counsel. We're going to hear the name of that person in the next 15 minutes or so when he comes out to speak here at the Justice Department.

But that -- we already know what this special counsel is going to be looking at. They're going to be overseeing both of the investigations, the Mar-a-Lago investigation, the investigation into the retention of those classified documents that the FBI has found when they conducted a search at Mar-a-Lago, the former president's residence, as well as some key aspects of the January 6 investigation.

What that tells us is that this is not taking over all of the January 6 investigation where you know you have more than a thousand people who are facing charges related to the -- to the insurrection. What this person is going to be overseeing is the aspects of this investigation that have to do with Donald Trump, the people around him, and the allegation that they conspired to obstruct the transfer of power after the January -- after the 2020 election. So, those are the two aspects of this -- of these two investigations that have to do with Donald Trump that this special counsel is going to be overseeing, Victor and Alisyn.

BLACKWELL: All right, you're seeing the last shot there, the podium where we expect to hear this announcement at about 30 minutes from the attorney general. Let me come to you, Paul Reid. You've got new reporting. You just had a conversation with the former president's attorneys. What did you learn?

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: That's right. Now, let's be clear, the former president has many attorneys. There are two separate investigations here. I just got off the phone with one of his attorneys who's working on the January 6 investigation. I asked for a reaction to the appointment of a special counsel. This attorney said it's interesting, but their hair isn't exactly on fire right now. This is something that they knew was being considered. They're not sure how this really changed this dynamic. But what they're really interested to know is who is it.

They know that there is a very small group of people who could really make this investigation not appear partisan. They, of course, pointed to former Special Counsel Robert Mueller and noted that as someone with Sterling Republican and law enforcement credentials, and, of course, that investigation was highly politicized in the press and by Republicans. So, at this point, they don't seem too upset about this. But again, this is separate from lawyers representing him on the Mar- a-Lago investigation, who may feel differently as most sources would agree that right now poses a greater legal risk to the former president. So, they may have a different reaction to that.

CAMEROTA: Absolutely. And, Jessica, I mean, that is one of the $64,000 questions of who it is, we'll find out, as Victor said, in 13 minutes. But who is that mythical person who in this day and age will be seen by all sides as nonpartisan?

JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: And that was the -- probably the hardest part for the attorney general is to find somebody who wouldn't be accused of being politically motivated because, of course, that has been the crux of the argument from the former president. Even as recently as his announcement on Tuesday night that he was running for a second term, he said that he'd been the victim of politically-motivated investigations on these two fronts when it comes to January 6, and then into the retention of National Defense Information at his home at Mar-a-Lago.

So, the question is, who did the attorney general come up with? We should be finding out in just about 10 minutes. But notably, this will be the third independent prosecutor that we've seen named by the Justice Department since 2017, all revolving around Donald Trump.

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Of course, it was in May 2017 that we saw Robert Mueller appointed as special counsel to oversee the Russia investigation, then we saw in 2020, John Durham was named special counsel to oversee the FBI's role in the beginnings of the Russia investigation, and now we will have this additional special counsel. John Durham is still ongoing as a special counsel. So, this will be another special counsel.

Crucially, here, this will be an independent prosecutor. However, ultimately, it will -- whatever decisions this special counsel makes, it will have to be approved as to potentially whether to charge the former president or any of his associates. It will have to be given the green light ultimately by the attorney general and top officials at the Justice Department. So, whereas this will be operating independently, there is still some involvement in the end from the attorney general here. That's also what we saw in those other two special counsels that we saw in the past five years as well.

So, we'll see what the attorney general says. He's going to make a brief statement. We understand he's not going to take questions. So, we may just come out with a few lines about who will be taking over this difficult post, perhaps.

BLACKWELL: Elie, to you. As Jessica just reminded us, we've seen the appointment of two special counsels in just a couple of years ago -- that's five years ago. Remind us what a special counsel can do, what makes this different from what is already happening at DOJ.

ELI HONIG, CNN SENIOR LEGAL ANALYST: Yes, Victor. So, the most important thing here is special counsel has all the powers that any federal prosecutor, that any U.S. attorney would have. He can investigate, he can use Grand Jury subpoenas, he can get wiretaps, search warrants, he can ultimately indict, take please, try a case, go to sentencing all the things that a normal prosecutor would do. There are some differences, however. As Jessica was saying, a special counsel has a bit more insulation politically and practically.

The regulations say special counsel is not subject to the day-to-day supervision of the attorney general. And the special counsel really gets to make all the big decisions himself. However, it is important to note that ultimately, the buck does still stop at the attorney general. The attorney general can overrule the special counsel. If so, the Attorney General then has to actually explain that in a written report to Congress. So, there's a bit of protection here.

I think the main idea is Merrick Garland is looking to outsource, at least, the initial decision about whether to bring charges relating to Mar-a-Lago or January 6 against Donald Trump. And the reason -- legally, the reason why you appoint special counsel is to avoid a potential conflict of interest. And I think the thinking here is well, now we have Donald Trump, an official candidate for 2024, there could be at least an appearance of a conflict if you have Joe Biden's DOJ.

Joe Biden selected attorney general leading the investigation of somebody who could be running against Joe Biden in 2024. So, it's going to be crucial to see, as we've said, who this person is, does this person have bipartisan or better yet, nonpartisan credentials. There are plenty of longtime prosecutors out there, people who have served under both administrations.

It's important to note one more thing. The special counsel has to come from outside of government. So, it is supposed to be somebody who's not currently serving in the U.S. government. That said, I expect it to be a former prosecutor, perhaps a former judge. CAMEROTA: OK, really interesting. So, Evan, just tell us the nuts and

bolts of how this will work. Once this person is named in less than 10 minutes, what will they have access to? How long will this process take? Because we all remember that the Robert Mueller investigation at times felt interminable.

PEREZ: Yes. Look, it felt interminable to those of us who are having to do it every day but you know, one of the things that interesting things about Mueller's investigation is that he was very mindful about the need to try to wrap it up very quickly, as quickly as possible, given the fact that you know you had a sitting president with an investigation, sitting -- you know, hanging over his head.

And so, one of the challenges, Alisyn and Victor, is going to be how do -- how does this person put some guardrails around what they're -- what they're doing? Because one of the criticisms of this, and certainly one of the criticisms that was going on upstairs in this building as they debated this was the question of, you know, how do we make sure that this person is not going to come in and just -- you know, they basically have an ending budget? They can -- they can go on and on, you know. Look at John Durham. He's still going after being appointed by Bill Barr during the Trump administration. So, the question is, how do you -- how do you limit that?

And the answer is, there is no really good way that the law really -- as Elie just described, the law really makes it clear that the -- that the special counsel is kind of his own boss. He's in charge -- he or she is going to be in charge of this investigation. What they're going to do is they're going to take over the investigation that's already ongoing.

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The Mar-a-Lago investigation is being run out of this building by national security investigators upstairs in the National Security Division. They're looking at the classified information and the potential damage and potential crimes that may have happened there. And then secondly, the January 6 investigation is being handled by a prosecutor down the street at the U.S. Attorney in the District of Columbia.

And so, both of those investigations which are already well underway are now going to be handed over to this person, this new prosecutor who's going to be in charge of it. And the idea being, that these are already pretty far along and this person is simply going to take them over, it's not going to start from scratch. That's the theory. But in practice, what Alisyn just said is absolutely true. They have -- the special counsels have a way of just going on and on and so, that's going to be the challenge for this person. BLACKWELL: All right, Evan, Jessica, Paula, Eli, standby. We're going to take a quick break, but we will continue to follow the breaking news on the other side. Attorney General Merrick Garland is set to announce a special counsel in the investigations into former President Trump. We will bring that announcement to you live scheduled for about four minutes from now. We'll be right back.

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CAMEROTA: OK, we're following breaking news. Attorney General Merrick Garland will announce the appointment of a special counsel to oversee investigations into former President Donald Trump. We expect that at any moment.

BLACKWELL: All right, let's bring in CNN, Jeremy Diamond at the White House, and CNN's national correspondent Kristen Holmes. Kristen, you first. Do you have new reporting?

KRISTEN HOLMES, CNN NATIONAL CORRESPONDENT: That's right, Victor. So, what I have learned is that remember, we reported on those dozens of subpoenas that went out to members of Trump's inner circle as well as those who had been associated with the former president back in September, and I have learned that of those -- some of those people were recently contacted and given new dates to appear before the grand jury in the near future.

Now, many of these people had hoped that the investigations had stalled or even halted because they hadn't heard from the Department of Justice. Many of them met that document deadline, which was back in September -- October but clearly, they are ramping this up. And it is been to the surprise of many of these people, some of them who were in Trump's inner circle to be getting these dates with their lawyers working on when they are going to appear before the grand jury.

CAMEROTA: That's really interesting. Jeremy, what are you hearing from the White House?

JEREMY DIAMOND, CNN WHITE HOUSE CORRESPONDENT: Well, listen, we were just in an event with President Biden, a bunch of us, reporters, tried asking the president for his reaction on the appointment of the special counsel. But frankly, it's not clear whether or not the president actually knew at that point, and that's because I'm told that the White House did not get a heads-up from the Department of Justice as it relates to this decision to appoint a special counsel. White House officials that I've been speaking with have been learning about this through news reports.

And we're also told by a White House official that look, the Department of Justice makes these decisions independent of any interference or any influence from the White House, makes these decisions independently saying "we are not involved." So that has been the White House's position as it relates to most matters relating to the Department of Justice and any criminal investigations, whether they be into people -- the president's political opponents like Donald Trump, or his family members like Hunter Biden. The response from the White House is almost always the same, which is, we let the Department of Justice do its thing. We're not involved. And in this case, they are learning about disappointment through news reports, not getting any heads-up from DOJ.

CAMEROTA: OK. Back with us now, we have Evan Perez, Jessica Schneider, Paula Reid, and Elie Honig. Paula, I know you recently spoke to President Trump's attorneys about this and Kaitlan Collins has some reporting that Trump's lawyers had been dreading this prospect. Why is this so -- you know, why did they have trepidation about a special counsel?

REID: Well, to be clear, there are two investigations here. He has many lawyers working on each of them. I spoke with one of the attorneys who's working on the January 6 investigation and that is, based on our reporting, considered to be less of an imminent legal threat to the former president than the facts as we know them in the Mar-a-Lago investigation. So, this attorney who's working on January 6 said that this was an interesting choice. His two questions, though, were who will be the special counsel, right? That's the question of the hour. And then what will their mandate be?

Specifically, when it comes to January 6, they assume that it will include any involvement or any potential charges for their client, the former president, but what about his close associates? Will that also be something that the special counsel will be overseeing? Is that also something the attorney general believes is too politically fraught to continue to handle or they just focus on the former president because he is now a candidate?

Now, on the Mar-a-Lago side of things, it sounds like the lawyers on that side have been dreading this because this also suggests that this investigation is not winding down. It is not winding up. That it will continue. There's a lot of outstanding questions in that investigation, including the sorting through of classified material, of privilege, personal material. There are other issues, bigger issues being litigated through the federal court systems. We knew this was going to take a while, but by appointing a special counsel, they have sent a message that particularly the Mar-a-Lago investigation and January 6. They are going to continue, they're possibly even ramping up. So, it's not great news for the president's attorneys. We'll be the first ones to tell you that they were kind of hoping things would wrap up soon.

BLACKWELL: All right, we just got the two-minute warning while Paula was answering that question. Elie, let me bring you in on that question of what this means for Trump and his team.

HONIG: Well, I don't think it makes an indictment any more or less likely than it was. Otherwise, the Justice Department, normal prosecutors, the regular rank-and-file, there were already well into this investigation. Ultimately, they have the power to make a decision.

[14:20:07] Now, what this means is they're going to bring in some outsider who makes the decision who will have some more independence than a typical prosecutor from the attorney general. So, I don't think it makes a -- an indictment any more or less likely. The special counsel doesn't necessarily have any special powers that an ordinary federal prosecutor wouldn't have, but the idea here is to create -- to mitigate any potential conflict of interest.

And I think Jeremy's reporting that it appears the Biden administration and the president himself, the White House, did not know this was coming. I think that's a really important point because DOJ, in my view, should be operating independently of politics, independent of the White House, and so it appears DOJ Merrick Garland has made this decision to appoint a special counsel on their own without consulting with the White House, without consulting with the president, and if the whole point here is let's get rid of any appearance of a conflict of interest, then that's a smart move.

CAMEROTA: Jessica, we had learned -- you know, Evan had been talking about John Durham and that special counsel investigation, and there wasn't a lot of transparency with that one. And, you know, obviously, there were -- there was a lot of times that we had no idea what was happening with the Robert Mueller investigation. I think the attorney general is marching out now. Let's listen in.

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MERRICK GARLAND, U.S. ATTORNEY GENERAL: 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. The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or the certification of the Electoral College vote held on or about January 6, 2021. The second is the ongoing investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation, referenced and described in court filings in a pending manner in the Southern District of Florida.

I'm joined today by Deputy Attorney General Lisa Monaco, U.S. Attorney for the District of Columbia Matthew Graves, and Assistant Attorney General for the Criminal Division Kenneth Polite. Assistant Attorney General for National Security, Matthew Olsen could not be here. He is currently in Germany representing the department at the G7 Home Affairs and Security ministerial. U.S. Attorney Graves has been ably leading the investigations into the events leading up to and on January 6. He and dozens of assistant U.S. attorneys and other prosecutors have taken on the monumental task of conducting over 900 prosecutions in defense of our democratic institutions.

Criminal Division prosecutors under the able leadership of Assistant Attorney General Polite have played a significant role in those prosecutions. Assistant Attorney General Olsen has been ably leading the team responsible for investigating the matter, involving classified documents and other presidential records, as well as the possible obstruction of that investigation. All of the career prosecutors assigned to these matters are conducting their work in the best traditions of the Department of Justice.

I also want to recognize the efforts of the many FBI agents and other law enforcement personnel who are assigned to these matters. They are working courageously and steadfastly, and are serving our nation honorably. I am grateful to them. We all are.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution. 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 stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel.

Such an employee -- an appointment underscores the department's commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously and to make decisions indisputably guided only by the facts and the law. The special counsel will conduct parts of the first investigation I just mentioned. The investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election, or with a certification of the Electoral College vote held on or about January 6.

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This does not include prosecutions that are currently pending in the District of Columbia or future investigations and prosecutions of individuals for offenses committed while they were physically present on the Capitol grounds on January 6. Those investigations and prosecutions will remain under the authority of the U.S. Attorney for the District of Columbia. The special counsel will also conduct the investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation.

Today, I signed an order appointing Jack Smith to serve as Special Counsel. The order authorizes him to continue the ongoing investigation into both of the matters that I've just described, and to prosecute any federal crimes that may arise from those investigations. Mr. Smith is a veteran career prosecutor. He began his prosecutorial career in 1994 as an assistant district attorney with the New York County DA's office.

In 1999, he became an Assistant U.S. Attorney for the Eastern District of New York, where over the course of nine years, he prosecuted matters ranging from gang murders of police officers, to civil rights violations. From 2008 to 2010, he served with the International Criminal Court, where he supervised war crimes investigations. In 2010, Mr. Smith returned to the Justice Department to serve as Chief of the Public Integrity Section, where he led a team of more than 30 prosecutors who handled public corruption and election crimes cases across the United States. In 2015, he agreed to serve as the first Assistant U.S. Attorney for

the Middle District of Tennessee, later becoming the acting United States Attorney. Most recently, Mr. Smith served as a chief prosecutor for the Special Court in The Hague charged with investigating and adjudicating war crimes in Kosovo.

Mr. Smith will begin his work as special counsel immediately and will be returning to the United States from The Hague. Throughout his career, Jack Smith has built a reputation as an impartial and determined prosecutor who leads teams with energy and focus to follow the facts wherever they lead. As special counsel, he will exercise independent prosecutorial judgment to decide whether charges should be brought.

Although the special counsel will not be subject to the day-to-day supervision of any official of the department, he must comply with the regulations, procedures, and policies of the department. I will ensure that the special counsel receives the resources to conduct this work quickly and completely. Given the work to date and Mr. Smith's prosecutorial experience, I am confident that this appointment will not slow the completion of these investigations.

The men and women who are pursuing these investigations are conducting themselves in accordance with the highest standards of professionalism. I could not be prouder of them. I strongly believe that the normal processes of this department can handle all investigations with integrity. And I also believe that appointing a special counsel at this time is the right thing to do. The extraordinary circumstances presented here demanded. Mr. Smith is the right choice to complete these matters in an even-handed and urgent manner. Thank you all.

(END VIDEOTAPE)

CAMEROTA: OK, we've been listening there to the attorney general talking about naming a special counsel to investigate two of the investigation into Donald Trump. And we've just learned that it is Jack Smith, who has a very impressive biography, everything from a prosecutor here in the states to covering war crimes -- to investigating war crimes at The Hague.

BLACKWELL: Yes, starting his public service almost 30 years ago working in the federal government in both Democratic -- or under Democratic and Republican administrations. Of course, we'll learn more about Jack Smith in the coming hours. Let's go back now to our panel.

CAMEROTA: We have Evan, we have Jessica Schneider and Elie Honig. Elie, your thoughts?

HONIG: So, when we talk about the career nonpolitical prosecutor, Jack Smith appears to be the very model of that notion. He has worked, as you said, for decades as a state and federal prosecutor and as a war crimes prosecutor. There's no obvious, no apparent on the face of it, political leaning one way or another. This is really what the Justice Department typically -- the vast majority of federal prosecutors in the Justice Department are. They are not political actors. They are not political appointees. They're people who just come in and do the job and do the work. And Jack Smith, by all appearances, has done that for many, many years now.

So, now he is going to have the first say. He is going to have to get up to speed on this investigation. It's going to take him some time. But it is a well-developed investigation. He's not starting from square one. And he will ultimately have at least the initial call on do we indict or do we not.