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Rosenstein says he "probably would not have" named special counsel for Trump cases

Rosenstein on special counsel in Trump cases
Rosenstein says he "probably would not have" named special counsel for Trump cases 07:19

Washington — Former Deputy Attorney General Rod Rosenstein said Sunday that he "probably" would not have appointed a special counsel to oversee the Justice Department's two ongoing investigations involving former President Donald Trump, as Attorney General Merrick Garland did last week.

"In this case, Merrick Garland clearly made a discretionary decision. The department had been handling this itself for two years, could have continued to handle it itself. But he believed that this would help to promote public confidence. I think it remains to be seen whether that's the case," Rosenstein said in an interview with "Face the Nation." "It's easy to second guess from outside. I think, you know, my inclination, given that the investigation had been going on for some time and given the stage which they've reached, is that I probably would not have, but I just can't tell from the outside."

As deputy attorney general in 2017, Rosenstein appointed former FBI Director Robert Mueller as special counsel to investigate Russian interference in the 2016 election and any ties between the Trump campaign and Russia. Jeff Sessions, then the attorney general, had recused himself from the case, leaving Rosenstein with oversight of the Justice Department's probe.

Garland announced Friday that he had named John "Jack" Smith as the special counsel tasked with overseeing the Justice Department's investigation into Trump's handling of sensitive government records at his South Florida home, as well as possible obstruction related to that probe and efforts to unlawfully interfere with the transfer of power after the 2020 presidential election or the certification of Electoral College votes on Jan. 6, 2021.

Smith served as former chief of the Justice Department's Public Integrity Division and as chief prosecutor for the special court in The Hague investigating war crimes.

The attorney general said his decision to appoint a special counsel was based in part on Trump's announcement last week that he would be running for president once more, and President Biden's intention to run for reelection in 2024.

Trump, meanwhile, told Fox News that he "won't partake" in the special counsel's probe, and in a speech Friday, called the investigations a "horrendous abuse of power."

The Justice Department's investigation into Trump's handling of government records involves documents the former president brought with him to Mar-a-Lago, his South Florida resort, from the White House at the end of his presidency. Federal prosecutors revealed in court papers that 300 documents marked classified were eventually recovered from Trump's residence, including during the Aug. 8 search of the property by the FBI.

A special master has been appointed in that case to review the thousands of documents seized by federal investigators and separate any that may be covered by claims of attorney-client or executive privilege.

The Jan. 6 case, meanwhile, is more wide-ranging and involves the failed strategy to certify alternate fake slates of presidential electors and keep Trump in power for a second term, as CBS News has reported previously. It also encompasses fundraising by Trump's team between the November 2020 election and Jan. 6, 2021, and how the money was used.

Rosenstein said he believes that while the Justice Department has spent nearly two years on the Jan. 6 case, and nearly a year on the Mar-a-Lago investigation, the appointment of a special counsel indicates investigators believe they have a "viable potential case."

"It doesn't mean they made a decision to go forward," he said. "But it certainly is an indication they believe it's a possibility."

But Rosenstein said there are "multiple levels of issues" that the Justice Department needs to consider before indicting a former president.

"Number one is, you know, is the evidence sufficient to obtain and sustain a conviction? Number two is, is it an appropriate use of federal resources to bring that case? And a case against a former president, obviously, would be extraordinary, would raise unique concerns," he said. "And so I would hope that Merrick Garland and his team would be very careful about scrutinizing that evidence, not just checking the box, but making sure that they're prepared to stand behind the decision that they make."

Rosenstein said sustaining a conviction would mean ensuring not only that a 12-person jury is persuaded of the defendant's guilt beyond a reasonable doubt, but also that a conviction would be upheld on appeal. 

"The department sometimes brings cases in which they use novel theories that prevail in district court but are overruled on appeal," he said. "If they're to bring a case against the former president, you want to make sure they had a solid case and they were confident both of conviction and of prevailing on any appeal."

Rosenstein also expressed concerns about the timing of the appointment and said there is a "fair chance" the investigation will continue into the 2024 election cycle.

"The new special counsel, Jack Smith, needs to get up to speed in the case. He's not even in the U.S. so he needs to come back and get engaged and supervise his team. He may need to bring in additional team members, people he trusts to review the circumstances," he said. "And then there are other potential delays as well. You know, one of the downsides of appointing a special counsel is the possibility of litigation over the validity of the appointment of the special counsel. And that has always been upheld by the courts. But litigation can impose additional delay."

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