'A mess of DOJ’s own making' is handing Trump's lawyers a way out: former prosecutor
Donald Trump (Photo by Mandel Ngan for AFP)

In a column for the Daily Beast, former federal prosecutor turned white collar criminal defense attorney Shan Wu chastised the Department of Justice for undermining their chances of indicting Donald Trump by investigating him while also defending him at the same time.

According to the attorney, an ongoing decision by the agency to defend the former president over his attacks on a sexual assault accuser is nothing less than an "embarrassment for DOJ."

As Wu wrote, "The Justice Department’s decision to take former President Donald Trump as (essentially) its client, defending him in the writer E. Jean Carroll’s defamation suit, has put DOJ in the awkward position of not only investigating its own client for potential criminal conduct—but also contradicting its client’s other lawyers," before adding, "This is a mess of DOJ’s own making."

As the attorney explained, the decision to intercede on Trump's behalf dates back to former Attorney General Bill Barr's time heading the DOJ, and it is as wrong now as it was then.

"Barr’s theory was that since Trump made the denials while he was president, then he must have been acting within his official capacity when he denied raping Carroll. Given the chance to disavow this strained reading of the law, Attorney General Merrick Garland’s DOJ, instead, doubled-down on it. It even fought for the right to defend Trump up to the federal Second Circuit Court of Appeals, which agreed with DOJ’s position on the matter," he wrote. "Garland’s decision to side with Bill Barr—presumably made while Garland was wearing his institutionalist cape—might have been merely distasteful if not for the Mar-a-Lago search warrant and ongoing criminal investigation. But critical to DOJ’s rationale that it can represent Trump—and what the Second Circuit agreed about—is that Trump was a federal employee when he made the allegedly defaming statements."

Central to the problem now is that the DOJ may have handed Trump's lawyers a weapon that can be used if he is indicted and goes to court.

"As already noted, it may afford Trump defenses in other civil actions brought by victims of the violence on Jan. 6, but it also creates potential problems with DOJ’s criminal investigation into the removal and handling of national security information involving Trump’s actions at Mar-a-Lago," he explained before adding, "The fact that DOJ is, at once, defending Trump and potentially investigating him for criminal charges is a no-brainer conflict of interest argument, and one which Trump’s legal team may use in his defense."

Suggesting that the DOJ should instead "appoint a special counsel to handle the Carroll defense, since that is an easier case to segregate than the investigation involving Mar-a-Lago," he added, "withdrawing from the Carroll case is the best option."

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