Washington
CNN
 — 

As Donald Trump inches closer to launching another presidential run after the midterm election, Justice Department officials have discussed whether a Trump candidacy would create the need for a special counsel to oversee two sprawling federal investigations related to the former president, sources familiar with the matter tell CNN.

The Justice Department is also staffing up its investigations with experienced prosecutors so it’s ready for any decisions after the midterms, including the potential unprecedented move of indicting a former president.

In the weeks leading up to the election, the Justice Department has observed the traditional quiet period of not making any overt moves that may have political consequences. But behind the scenes, investigators have remained busy, using aggressive grand jury subpoenas and secret court battles to compel testimony from witnesses in both the investigation into Trump’s efforts to overturn the 2020 election and his alleged mishandling of national security documents kept at his Palm Beach home.

Now federal investigators are planning for a burst of post-election activity in Trump-related investigations. That includes the prospect of indictments of Trump’s associates – moves that could be made more complicated if Trump declares a run for the presidency.

“They can crank up charges on almost anybody if they wanted to,” said one defense attorney working on January 6-related matters, who added defense lawyers have “have no idea” who ultimately will be charged.

“This is the scary thing,” the attorney said.

Trump and his associates also face legal exposure in Georgia, where Fulton County District Attorney Fani Willis is investigating Trump’s efforts to overturn the 2020 election in the Peach State and expects to wrap her probe by the end of the year.

Indicting an active candidate for the White House would surely spark a political firestorm. And while no decision has been made about whether a special counsel might be needed in the future, DOJ officials have debated whether doing so could insulate the Justice Department from accusations that Joe Biden’s administration is targeting his chief political rival, people familiar with the matter tell CNN.

Special counsels, of course, are hardly immune from political attacks. Both former special counsel Robert Mueller’s Russia investigation and special counsel John Durham’s investigation into the origins of the FBI’s Russia probe came under withering criticism from their opponents.

The Justice Department declined to comment for this story.

The Justice Department has brought in a brain trust for high-level advice on the Trump investigations, according to people familiar with the moves.

Top Justice officials have looked to an old guard of former Southern District of New York prosecutors, bringing into the investigations Kansas City-based federal prosecutor and national security expert David Raskin, as well as David Rody, a prosecutor-turned-defense lawyer who previously specialized in gang and conspiracy cases and has worked extensively with government cooperators.

Rody, whose involvement has not been previously reported, left a lucrative partnership at the prestigious corporate defense firm Sidley Austin in recent weeks to become a senior counsel at DOJ in the criminal division in Washington, according to his LinkedIn profile and sources familiar with the move.

The team at the DC US Attorney’s Office handling the day-to-day work of the January 6 investigations is also growing – even while the office’s sedition cases against right-wing extremists go to trial.

A handful of other prosecutors have joined the January 6 investigations team, including a high-ranking fraud and public corruption prosecutor who has moved out of a supervisor position and onto the team, and a prosecutor with years of experience in criminal appellate work now involved in some of the grand jury activity.

Taken together, the reorganization of prosecutors indicates a serious and snowballing investigation into Trump and his closest circles.

The decision of whether to charge Trump or his associates will ultimately fall to Attorney General Merrick Garland, whom President Joe Biden picked for the job because his tenure as a judge provided some distance from partisan politics, after Senate Republicans blocked his Supreme Court nomination in 2016.

Attorney General nominee Merrick Garland at his confirmation hearing before the Senate Judiciary Committee.

Several former prosecutors believe the facts exist for a potentially chargeable case. But Garland will have to navigate the politically perilous and historic decision of how to approach the potential indictment of a former President.

In March, Garland avoided answering a CNN question about the prospect of a special counsel for Trump-related investigations, but said that the Justice Department does “not shy away from cases that are controversial or sensitive or political.”

“What we will avoid and what we must avoid is any partisan element of our decision making about cases,” Garland said. “That is what I’m intent on ensuring that the Department decisions are made on the merits, and that they’re made on the facts and the law, and they’re not based on any kind of partisan considerations.”

Garland’s tough decisions go beyond Trump. The long-running investigation of Hunter Biden, son of the president, is nearing conclusion, people briefed on the matter say. Also waiting in the wings: a final decision on the investigation of Florida Republican Rep. Matt Gaetz, after prosecutors recommended against charges.

It likely won’t take long after the midterms for focus to shift to the 2024 presidential race. That could incentivize top DOJ officials to make crucial charging decisions as quickly as possible, including whether to bring charges against Trump himself or other top political activists, other sources familiar with the Justice Department’s inner workings say.

“They’re not going to charge before they’re ready to charge,” one former Justice Department official with some insight into the thinking around the investigations said. “But there will be added pressure to get through the review” of cases earlier than the typical five-year window DOJ has to bring charges.

Matters could also be complicated by the situation in Georgia, where Willis is investigating Trump’s efforts to overturn the results of the 2020 election there. Willis has said she’s aiming for a special grand jury to wrap up its investigative work by the end of the year.

Willis has observed her own version of a quiet period around the midterm election and is seeking to bring witnesses before the grand jury in the coming weeks. Sources previously told CNN indictments could come as soon as December.

Key Trump allies, including South Carolina Sen. Lindsey Graham and former White House chief of staff Mark Meadows are among witnesses that have tried to fight off subpoenas in the state probe into efforts to interfere with the Georgia 2020 election.

How those disputes resolve in Georgia – including whether courts force testimony – could improve DOJ’s ability to gather information, just as the House Select Committee’s January 6 investigation added to DOJ’s investigative leads from inside the Trump White House.

The months leading up to the election have provided little respite from the political and legal activity around the investigations. The DC US Attorney’s Office–which is still shouldering the bulk of the January 6 investigations–has dealt with burnout in its ranks, as prosecutors are taking to trial or securing guilty pleas from more than 800 rioters who were on the grounds of the Capitol and still look to charge hundreds more.

Trump has also foiled the DOJ’s efforts to keep things quiet in the weeks leading up to the election, leading to a steady barrage of headlines related to the investigation.

Trump’s legal team successfully put in place a complicated court-directed process for sorting through thousands of documents seized from Mar-a-Lago, to determine whether they’re privileged and off limits to investigators. But the Justice Department and intelligence community have had access for weeks to about 100 records marked as classified that Trump had kept in Florida.

The outcome of the intelligence review of those documents may determine if criminal charges will be filed, according to one source familiar with the Justice Department’s approach.

Yet in both investigations, under-seal court activity never subsided, with the Justice Department trying to force at least five witnesses around Trump to secretly provide more information in their grand jury investigations in Washington, DC, CNN has previously reported.

On Tuesday a federal judge ordered Trump adviser Kash Patel to testify before a grand jury investigating the handling of federal records at Mar-a-Lago, according to two people familiar with the investigation.

Judge Beryl Howell of the DC District Court granted Patel immunity from prosecution on any information he provides to the investigation— another significant step that moves the Justice Department closer to potentially charging the case.

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