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Georgetown Law professor on the special counsel overseeing Trump investigations

MARY LOUISE KELLY, HOST:

Days after Donald Trump announced he is running a third time for president, the U.S. attorney general announced that he is appointing a special counsel to investigate Trump. Here is Merrick Garland speaking today at the Justice Department.

(SOUNDBITE OF ARCHIVED RECORDING)

MERRICK GARLAND: 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's stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel.

KELLY: Garland says the special counsel will oversee criminal investigations over classified documents at Mar-a-Lago, as well as the January 6 attack on the Capitol. I want to bring in Paul Butler, a former prosecutor and a professor at Georgetown University Law Center. Paul Butler, welcome.

PAUL BUTLER: Hey, Mary Louise - great to be here.

KELLY: Explain, if you would, what we just heard Garland say there about recent developments, that his decision stems from Trump's move to run again for president and Biden's apparent intention to do the same. Why does that matter?

BUTLER: The attorney general can appoint a special counsel if there's a concern about a conflict of interest or special circumstances which could make people question DOJ's impartiality in a particular case. Important to understand, it's a special counsel, not an independent counsel. The decision to bring charges is still Merrick Garland's. Mary Louise, I think this is about the appearance of justice. The attorney general's concern is that if both Biden and Trump run for president, it might look to some people like the Biden administration is trying to neuter his political opponent. Now, that would not actually be the case because the attorney general will make his decision without consulting the president in any event.

KELLY: Although he does work for the president, who apparently will be running against Trump. I mean, is there - at a certain point, is it inevitable that there will be accusations of - I don't know - motivations that are political?

BUTLER: That is certain. And we know that based on the appointment of the last special counsel to investigate President Trump, who was Robert Mueller. There was another special counsel appointed during the Trump administration, John Durham, who investigated the FBI's Russia investigation. And they were both criticized as conducting witch hunts. So I don't think it's obvious that appointing special counsel is ultimately going to satisfy anybody who's concerned about the role of politics in these investigations.

KELLY: What is your sense of a timeline? How long might this take?

BUTLER: So in making the announcement, the attorney general emphasized that the appointment of a special counsel would not delay the investigations. Reportedly, federal grand juries have been looking at the former president's conduct with regard to the insurrection and the national security documents at Mar-a-Lago. The special counsel won't start from scratch, but he will have a lot of catching up to do. And prosecutors aren't supposed to think about politics. But, of course, the background we all know is Trump's announcement that he will run for president. And I think that inevitably creates some pressure to decide about prosecution sooner rather than later. The closer to the election the announcement is made about whether to prosecute, the more political it could look. And that's especially true if the decision is to go forward with a case against the former president.

KELLY: Let's talk about the man who has been named to this job. It is Jack Smith. You used to work with him in the same DOJ section where he was a chief. What do we know about him? What do you know about him? What should we know about him?

BUTLER: Jack Smith is a prosecutor's prosecutor. He's been trying criminal cases for almost 30 years. He won two high-profile public corruption cases, one against the former governor of Virginia and another against our congressman. He also lost a high-profile police brutality case. He was the chief of the public integrity section where I worked as a trial attorney. We didn't overlap. I've met him a few times. I'll note the people who work in that section are steadfastly apolitical, but there's also a reason we wanted to work as public corruption prosecutors.

KELLY: Right. And just to nod to one other aspect of his resume, that he's going to have to come back from The Hague to take up this role. He has been a prosecutor for war crimes in Kosovo.

BUTLER: So my former colleagues, Mary Louise, and I have been spinning about whether this is an assignment that we would take.

KELLY: Right.

BUTLER: On the one hand, there's a patriotic duty. On the other hand, if there is a case, it will be historic, unprecedented, an extraordinary amount of scrutiny. I think Jack Smith is the man for the job, the person for the job.

KELLY: That is attorney and Georgetown University law professor Paul Butler. Thanks so much.

BUTLER: Always a pleasure. Transcript provided by NPR, Copyright NPR.

Erika Ryan
Erika Ryan is a producer for All Things Considered. She joined NPR after spending 4 years at CNN, where she worked for various shows and CNN.com in Atlanta and Washington, D.C. Ryan began her career in journalism as a print reporter covering arts and culture. She's a graduate of the University of South Carolina, and currently lives in Washington, D.C., with her dog, Millie.
Ashley Brown is a senior editor for All Things Considered.
Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.