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in you. good to be with you. i'm chris jansing in for katy tur, we're waiting for attorney merrick garland, he is expected to make a statement in a few minutes as we learn the breaking news that garland has named a special counsel to investigate the mar-a-lago case, and key aspects of the january 6th investigation. joining me now is justice and intelligence correspondent ken dilanian. ken, bring us up to speed. >> good afternoon, chris. that's right. a senior justice department official tells nbc news that attorney general merrick garland has appointed a special counsel to investigate the entire mar-a-lago case, into whether national defense information was improper retained, at former president donald trump's home in florida and key aspects of the january 6th investigation, specifically the elements that

involve allegedly unlawful efforts to overturn the 2020 election and influence the certification of electoral college votes. in other words not the capitol riot cases but the aspect of the cases that involve former president donald trump. as you mentioned, merrick garland is expected to announce this move at 2:15 today and tell white house the special counsel will be. one of the interesting questions here is that we are at a very different place in these investigations than we were when robert mueller was appointed to oversee the so-called trump russia investigation. that investigation was in its nascent stages at the time mueller took over and he built a team and essentially started from scratch. these investigations are very far along the track. there have been grand juries, witness testimony, fbi interviews, and particularly the mar-a-lago investigate, it is seen as so advanced that it looked like, for a while, that the justice department was building a trial team. and they're bringing on prosecutors with experience trying these kinds of cases.

so a really open question here is whether this special counsel will have, will want to start again, essentially, and hire a new team of fbi agents, and reinvestigate the case, or whether he or she will simply take what has already been presented and then make some very important decisions about whether to charge crimes in this case. >> none of the information that they've already acquired, it is voluminous, and we know, this and they have been putting together, prosecutors have been busy putting together all of that evidence, looking at case law that needs to be put together, to decide what might apply here. i mean just talk about how much work has gone into this already. >> that's right. i mean in the mar-a-lago case alone, we know from this voluminous court record about the seizure, and the documents, and we know from reporting that they have interviewed a number of key witnesses in that case, but really, it comes down to in that particular case, it comes down to a judgment call, about whether to charge the former

president, and you know, we're seeing in recent days some reporting on the large number of cases of people who took home classified information with no allegation that they gave it to a foreign power or disseminated it, went to prison. so the consensus in the legal community is that if it was anybody else but a former president, they already would have been indicted. and so presumably, this special counsel will have to make this momentous decision about whether a former president needs to be treated differently in the case of mishandling or allegedly mishandling classified information. when it comes to january 6th, we know less about how close they are about making allegations against donald trump in particular, but as you know, the grand jury has heard from dozens of witnesses in that case. they've gone through thousands and thousands of records. and so it is an open question as to whether how much investigating this special counsel will want to do on his own or whether he will rely on the record in front of him. >> former u.s. attorney harry

litman, what would you expect in that regard? >> well, i expect he is going to mainly take what has been given him. it looks to be, this is the report anyway, jack smith, who is someone who has broad experience within the department of justice, in different offices, would be known to them, and i don't think he will want to reinvent the wheel. i don't think he will need to reinvent the wheel. >> so in terms of not reinventing the wheel, let's talk about what your knowledge is about, you know, ken was just talking about this, the volumes of evidence that already exist, the number of people who have already been spoken to, i mean just the breadth of this investigation is extraordinary. >> it is. and of course, it's not that huge a crime. it's more targeted, and there's one indication in particular they really were nearing a prosecutorial decision based on the people they have had on the grand jury. so this is something that's

gone, if it's a two mile race, it's gone one and three quarter miles, to all appearsances, people were speculating that the final decision would be made in the next couple of months. it would be folly, among other things, and really very much spreading the prosecution for the special counsel to just start back at square one. >> even not sitting at square one, where does the special counsel begin? >> in this case, if it is jack smith, in his office, having team meetings for a week, pouring through everything in the grand jury, everything in the grand jury, all of the talking about, with the prosecutors, who apparently have already been, are ready to make a recommendation, about everything from broad concept of the case, to specific witnesses, and what the lawyers call order of proof. i mean they are really close to a possible decision.

security yesterday put out 160-page simulation of a so-called prosecutor's memo, that's the kind of document that they will prepare for him, and he will prepare for the attorney general. it goes through everything. including all of the reasons they could lose, because they have to find, in order to come forward, not just that he's guilty, but that they're likely to win. that's part of d.o.j. guidelines. but i want to emphasize, he'll be absorbing more than creating. >> but given what we've spoken about, and the enormity of this, the unprecedented nature of it, a former president, who is running for president again, the question i heard time and time and time again, before this decision was made, on whether or not to actually appoint a special prosecutor, was this, harry litman, why would anybody take this on, given the politics surrounding it? >> it's a great question. and i'm certain, it's one thing for merrick garland who is the

attorney general, reports to joe biden, i am certain that merrick garland will tell this person, and this person will know any way, or wouldn't be appointed, you ignore all that. that's not your job. you tell me about the facts and the law. you can consider it, maybe, if you think it's part of what the jury pool will look like, et cetera, but keep that out of your decision-making, when you guys are in the room, you treat it like another case. and that's one of the reasons for a special counsel. and it's easier to be in that role if you're a special counsel. you can just say, i am blanking that all out. >> i do want to say, and this relates in many ways to the potential political aspects of this, that the white house is now responding to it, via kristen welker, our chief white house correspondent, when asked to respond to the news that ag merrick garland has appointed a special counsel, a white house official says d.o.j. makes decisions about its criminal investigations independently, and we are not involved, so i

would refer you to d.o.j. for any reaction to this. but in addition, during president biden's event, we told you that he did have some staples he was making about the economy, he was meeting with business leaders, several of the press pool did know about this, they were able to ask him to respond to the news. he declined to answer any questions about this, or any other topic. i also want to bring in msnbc legal analyst lisa ruben. are you surprised by this decision? >> i'm very surprised, chris, by this decision, because there are all sorts of reasons why it didn't make sense for the department of justice to do this. one of the reasons that in my mind it didn't make is because the only way that you can remove a special counsel is for cause, under the current special counsel regulations, and so if merrick garland is displeased with the pace, or with leaks, or with any other conduct of the person he is about to appoint,

his only mechanism for removing that person is to prove that they have done something equivalent to misconduct. not just that he doesn't like their performance or even that they're negligent. it really has to rise to the level of misconduct or what would be cause in any other environment. if the department of justice loses a significant amount of control, even though in the end, they also retain the ultimate accountability. i think someone else mentioned on your air, the attorney general is still ultimately in control of the recommendation made by the special counsel to the department of justice, so you have the accountability without the control, it's not the decision that i expected, or would make, but we're looking forward to hearing from the attorney general, chris as to why he felt it was necessary to do this today. >> it is interesting, and harry and i were talking about this earlier, you know, is there anyone, and brenden buck as well, who was an aide to former republican house speakers, which was, how do you find someone who is trusted by both sides? and i wonder if in this current

political environment, lisa, is there anybody who fits that bill? >> i mean i certainly scratched my head, chris, to try to figure out who that would be. and certainly, in prior investigations, they name those people and they have nonetheless seen their reputations smeared by political opponents or people they didn't even expect to be political opponents. i think barbara mcquade was on our air the other day saying if you could custom make the profile of someone built to be a special counsel it would be robert mueller and we saw what happened to him. and to your point, is there not someone who i could think of that would be palatable to both sides, i'm not sure who would want this job given what has happened to people who have been appointed as special counsel in the past. in addition to the way this ended, former fbi chief mueller's career, and what has happened to john durham's career, there are a litany of people who don't want to see the twilight of their careers

similarly sullied by getting involved here. and yet, at being this person, popping up at the attorney's office may be irresist sible to some. >> and for those who don't understand how the special counsel works, harry litman, this is a decision in the hands of the attorney general, it is not something that can be challenged, it is not something that can be changed, isn't that correct? >> that's right. and as lisa said, there has to be cause to get rid of them. but that cuts both ways because if you fast forward and imagine we're in 2024, and trump or a republican is president, they can't just willy-nilly uninstall them. they could find something, but that would be a real brew ha half its own. so they're given insulation on both sides and as long as they act appropriately, the person that i think garland is going to announce has been literally at every level from state to federal to international

criminal prosecution, and i take lisa's point, but there are a lot of people who would see this as a really great challenge and wouldn't shy away from it. >> let me bring back carol, and i think we're in a part of the political process, for sure, where i think there is skepticism on every side, and every once in a while, you see someone who comes out, and is generally acknowledged to have essentially stuck their neck out into a very difficult situation. where do you land on this? why would anybody want this job? >> i know there are people in the united states still who are willing to serve their country. and they're willing to follow the rules and do the best they can, try to do things within the rules, and bring justice forward, whatever the ends may be. so it doesn't surprise me that there are people who are willing to do that. this is a little bit of half the

loaf and i think you're hearing that from all of us, it is half a loaf because there is a struggle here to have both the reality and the perception of this investigation, or these investigations be unbiased and independent, but i think everybody knows that -- that's very, very difficult to do. and under the current special counsel statute, because the ultimate decision and ultimate accountability does still fall with the attorney general and he is the one who actually appoints a special counsel, there will never be complete satisfaction on that front. so it is going to be very interesting to hear what merrick garland says, but i think at the end of the day, he views this route as the lesser of evils, the best he can do, under the circumstances. >> lisa, let me pick up on something that carol just said, that she is sure whoever this person is, and we'll hear that in just a couple of minutes, they will do the best they can. i guess the question is, how

complex are these two things that the special prosecutor will be looking at. >> they're incredibly complex and they're also unprecedented, as i and others have repeatedly said on our air, one of these investigations alone presents a number of thorny questions. both of them together are all the more complex. and so this is for, as harry said, for someone who wants this challenge, or for someone who, as carol said, is up to serving our country, i can't think of a more challenging assignment than this one. the timing is also a little bit odd. we have an argument next week in the 11th circuit, a federal court of appeals, on whether the special master appointment was necessary in the first place. and so the timing of the special counsel picking this up, how is this handoff going to work, when we are mid process with the special master, mid process with an appeal, that's all uncertain, too. and certainly, i think something that folks like me are hoping

merrick garland addresses when he takes the podium in a few minutes, chris. >> you make another good point, you also have a special master who is looking into this, who by the way was on the list provided by donald trump, and then we know how that all turned out. we really have never had, lisa, seen anything like this. >> we have never seen anything like this. and to the point, you know, to harry's point about the person we think might be appointed today, i take this point there are lots of people who might be interested in doing it, but the list of people who are qualified to do this who could be acceptable to both parties is certainly dwindling and that is because some of them already have appointments in this process to begin with. you mentioned judge ray dearie in new york, special master and barbara jones, just appointed as an independent monitor, in the new york attorney general's office of the trump organization. both of those people, without those assignments, would probably be good candidates to

be the special counsel for the department of justice. and so i am hopeful that jack smith, if he is the person who is appointed in a few moments, has the fortitude, that both of those folks have shown so far, and their willingness to get involved and to dive into something that is legally thorny and complex, before you add the additional dimension that the prospect of defendant is a former president of the united states, and a current candidate for president of the united states. chris? >> we are just a minute or two, harry, past what we thought was the first possible time that we wa heard from attorney general merrick garland, and as we know, these things are often delayed, but let me ask you, maybe put a reporter's hat on for just a minute here, as well as your legal hat, which is what do you want to learn from the ag? >> well, i think you want to learn why he's made the decision, and i think we know why what he'll say, that he found under the regs that is

just required and he is going by the law. i don't think he will go outside the four corners of that. one thing to note by the way, you're right that this person takes the reins but it doesn't mean that garland and especially lisa monaco, the deputy attorney general, disappear from the scene. just as rob rosenstein didn't disappear from the scene with robert mueller. so a whole new layer. somebody who has to know everything and make a final recommendation to the a. g., but all the kind of brain trust, and it's a very big and very professional boot map, they remain. so it is matter of getting someone who is broadly experienced including by watt way in judge dearie's old office the eastern district of new york, up to speed. daunting but not completely, i think, you know, overwhelming. >> and incredibly important point that you just made, harry, given the complexity that we all know, both of these cases have, that they're not losing any institutional knowledge. >> that's right.

>> let me ask you as well then, lisa, what would your question be today for the attorney general? >> did you consider any alternatives? so harry was refer together special counsel regulations, which do dictate the appointment of a special counsel in certain circumstances where there is a conflict of interest, or other extraordinary circumstances. but then there's sort of a clause at the end of it says the attorney general is free to look at alternatives including recusals. so one of the questions i have, have you satisfied yourself that those alternatives wouldn't have been sufficient to address concerns of the american public in investigating a former president. for example, could you have limited the people at the department of justice involved in this to those who really and truly have a need to know what is going on. or could you have removed from the investigation anybody with a spouse or immediate family member who works at the white house? were there ways to remove those perceived conflicts of interest without going to the point where

you appointed a special counsel? >> former assistant director for counter-intelligence at the fbi, frank verluzzi joins me as well and i may have to interrupt if you the attorney general comes out and this has been considered a long time but it adds another layer by appointing a special counsel. your thoughts? >> chris, it will ultimately create a delay, naturally. so my thoughts are initially, look, i understand why this is happening, but yet i don't agree with it happening. and that's because we either have the justice department capable of doing its job, even under the most difficult challenging of circumstances, or we don't. and as previous speakers have said, even if you selected the most optimal candidate, if mother teresa was still alive, they would find a way, on the political side, to tear her apart, so no matter who is selected here, it won't matter. it will be political and

partisan. we have seen it with robert mueller as special counsel. we will see it with the next special counsel. so this concept of preserving the sanctity of the institution, which i believe is where garland is coming from, so that it's free from any perceptions of politicizing, i get that, but it won't be immune from it no matter what garland does. so it is time to actually say the d.o.j. can do its job or it cannot, we're not going to have naysayers change their minds on this, it will need a delay, hopefully not a significant delay, hopefully they're doing this at a point where the investigation is ready for a decision, they're going to hand the investigative product to this person, and this person is going to essentially make a decision. but if i'm not that person, or you're that person -- >> here's merrick garland. let's listen in. >> i'm here to announce the appointment of a special counsel in connection with two ongoing criminal investigations that have referred 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 6th, 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 the pending matter 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 poleet. assistant attorney general for national security, matthew olsen, could not be here. he is currently in germany represent can the department at the g-7 foreign affairs and

security ministerial. u.s. attorney graves has been ably leading the investigations into the events leading up to and on january 6th. he and dozens of assistant u.s. attorneys and other prosecutors have taken on the monumental task of conduct being over 900 prosecutions in defense of our democratic institutions. criminal division prosecutors under the able leadership of assistant attorney general b p-. oleet, have played a significant role in those prosecutions. assistant attorney general olsen has been ablebly leading the team responsible for investigating the matter involving classified documents and other presidential records as well as a 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 stead fastly and 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 independently manage an investigation and prosecution. based on recent development, 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. such an appointment underscores the department's commitment to both independence and accountability and particularly sensitive matters. it also allowed 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 the certification of electoral college vote, held on or about january 6th. this does not include prosecutions that are currently pending in the district of columbia or future investigations and prosecutions of individuals or offenses committed while they were physically present on the capitol grounds on january 6th. 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 have just described, and to prosecute any federal crimes that may arise from those investigations. mr. smith is a veteran career prosecutor. he began as prosecutorial career in 1994 as an assistant district attorney with the new york county d.a.'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. 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 demand it. mr. smith is the right choice to complete these matters in an even-handed and urgent manner. thank you all.

>> and he's not going to take any questions, clearly. attorney general merrick garland saying it's the right thing to do. taking the extraordinary and unprecedented step of naming a special counsel in two separate investigations involving the former president and current candidate for president of the united states, donald trump. of course, one of them the mar-a-lago documents case, the other january 6th, specifically related to any attempts to overturn the 2020 election. lisa ruben and harry litman remain with me. julia ainsley joins me as well. what do we know about the back story. >> we know this is because of extraordinary circumstances. the justice department had some very large cases here against former president trump, not just a former president, but is now a candidate, having just announced his candidacy to run again in

2024. announcing that three days ago. it's hard not to see that as an impetus for this decision. and then his decision to name jack smith, someone who would not be readily at the tip of the tongue of republicans or democrats or seen as a partisan and in fact most well known as a recent role as a specialist prosecutor appointed by the european union to carry out investigations into the kosovo liberation army for possible war crimes in kosovo. so he had international clout, he's also come up through the ranks of the justice department, beginning in the '90s, also getting into the rank of acting u.s. attorney, in tennessee, and to be someone who clearly has built up a reputation as a prosecutor, both within the united states, and abroad, and he's also, you know, fairly young, and determined that he is not already retired. he is not someone like robert mueller, who they called out of retirement. of course, toward the end of robert mueller's time, his testimony before congress, there were some questions about was he

too old to be doing that job. that doesn't seem that this will be a question here, but of course, it's really lard to find anyone, chris, who will evade criticism, even the idea of picking someone who conduct these investigations will still get criticism, because it's hard for some people to believe that there will ever be enough space between the biden administration and the former president to truly lock in a look of independence. but merrick garland also said that it will be jack smith's decision for prosecutorial power, rather than giving all of the evidence over to the justice department to decide whether or not to prosecute, that will be something that he will have prosecutorial powers and certainly putting a lot in the hands of jack smith today. and as you pointed out, on the january 6th piece, it is not everything, people who are already being tried, like oath keeper trial is going on right now, in dc, those will continue, for people who are physically there for the insurrection.

this is about meddling with the election, and efforts to certify, which we know were attempted to be obfuscated, to be overthrown on january 6th and that is the piece that he will be taking on. a very large responsibility, chris that just got put on this man's shoulders today. >> let's talk a little bit more about jack smith, because i don't think, as julia suggests, you can overstate harry litman, the amount of responsibility that he is taking on. he is no stranger in being involved in controversial cases, and he was involved with the amadou dialla case and a case that brought up deeply felt arguments about race and policing in imagine, amadou was an immigrant shot 19 times by four nypd police officers. they eventually went to trial. and were acquitted. but the amount of controversy that raised, the amount of politics involved in that, it is

something that i suppose you could say, harry litman, and tell me what you know of jack smith, in some ways probably let him know in some small way what he is getting into, essentially. >> yes, that's exactly right. that was in the eastern district of virginia, where he was for nine years. he's got an unbelievably panoramic resume, starting from being in the state system in manhattan, all the way to the international system, and one of the posts that julia mentioned that is important here, he was the acting u.s. attorney in tennessee. how the heck does something like that happen to a mainly new yorker? it happened, and this happened to mueller as well, there is a problem spot in the department, they need to put somebody in there that everybody trusts, to get the job done, while they figure it out, it's not like he knows the senators from tennessee. the department installs jack smith. that shows their general confidence in him. he also headed the public integrity section. the special section charged with

doing politically charged prosecutions, against political figures, say in state or local places. so he knows how to do all of those things. but importantly, a pretty low profile. not unlike robert mueller. not the kind of guy who anyone on the street will have heard of, but everyone within the department will. i'm sure opposition research in the house of representatives is already going on. but you cannot get someone who combines more sort of broad experience and respect with no previous profile to attack, so that's the explanation, i think. >> i sort of, we want to go back something to merrick garland said, that it was important for him, for the american people to know, that there was independence and accountability. right? and there are going to be people, very strict partisans who will never be happy, and we

talked about that, no matter who you appointed, but for the american people, for the average american voter, do you think, lisa, they look at this and they say, okay, d.o.j. has stepped back, merrick garland has stepped back, we are in the middle of a political season, we are with a former president who is running for president, and this guy who seems to have a great reputation, is somebody who makes me feel better about this prosecution. >> i think so, chris. i mean much of it was a surprise to folks like harry and me. and as much as frank said, i understand it, but i don't agree with it, the part that i understand is exactly what you just said. that the average american sitting at home and learning about jack smith for the first time today says this is the person who had been utterly removed from american politics, he has been living in the hague, he is flying back from germany, as we speak. as merrick garland just said. and now he is being entrusted to run these investigations,

because of that independence of spirit. he's got 16 years of history with the justice department, and now, he's being entrusted as garland said, and i think this is important, chris, and i am a word parser, as you know, to complete these investigations, in an even-handed and urgent way. and i'm hearing merrick garland say we're not starting from scratch. jack smith does not expect to start from scratch. but rather, we are giving to jack smith the body of work completed thus far, and we are trusting him to take this over the finish line wherever that may lead. whether to indictment, or not. but this job now belongs to him to complete. and i think the word complete is really doing a lot of work there. for people like me, who wish that the department maybe had continued on its pagtd on its own. >> and i'll also bring in former u.s. attorney barbara mcquade, and can we talk a little bit about the timing of this, obviously, after the midterms, but having said that, i wonder what you make of this, and what your reaction is, and in

particular, about the timing of it all. >> a couple of things. the special counsel regulations say that the justice department should appoint a special counsel either when there is a conflict of interest, and i don't think that's present here, or other extraordinary circumstances. and i think it was that second factor that merrick garland relied on here in this appointment. it sounds like, i agree with lisa, from the way he chose his words, that jack smith is going to come in and simply oversee the work that's already being done by a team of prosecutors. so it's not reinventing from scratch. it's just a new person to report to, and he can get up to speed simultaneously while they're doing their work. but the one thing i find most significant, chris, is you don't need to appoint a special counsel just to decline a case. you don't call in a jack smith, someone with incredible credentials, incredible reputation, pull him out of the hague to do this work, unless you think there is a very high likelihood that one of these cases is going to result in charges. so that's my read. >> and i don't want put words in

your mouth but are you suggesting that maybe it's close? >> i don't know whether it's close or not close, because i think the timing was probably dictated by donald trump's announcement. but i do think that the likelihood that it will happen is higher than i might otherwise have thought, because you don't need to appoint a special counsel if you're simply going to walk away from a case. >> lisa rubin, you were nodding. >> i completely agree with that. and bash, as always, is so on point here. when we think about recent special counsel appointments, they are either investigations that were in their most nascent of stages, or they're investigations, as with the investigation, that did not exist until bill barr decided to appoint john durham to investigate the investigators, as we've been fond of saying. this is a wholly different situation where for months, if not for years, in the case of the january 6th investigation, the department has been looking at these things on its own with

a very capable team, and a wide-ranging team of prosecutors and investigators across multiple facets of the department of justice. and to in that circumstance, you have to ask yourself, as barb did, why appoint a special counsel if there's nothing further to do? i think that's a really, really great point, and i'm glad she made, it chris. >> and harry, one of the other things that merrick garland said is he is going to give him the resources to conduct his work quickly. what kind of resources are we talking about? as you andy discussing just a short time ago, he keeps all of the brain trust, all of the folks working thon for such a long time, all of their knowledge, all their research, all of that, remains with this case. >> yes, look, this is a way of blunting, there are two kinds of criticisms here of the decision, one is it just won't help, and it is going to be politicized anyway, the other is it will delay. that's blunting the second criticism. and he said it specifically.

there's no reason that it needs to delay things. i think the better, the more truthful is there's, it will only delay things a bit. but it's definite lay a blank check, whatever he needs but it is already out there. to bash's point, look, i don't disagree, that understand the circumstances, it is likely that he will go this way, i think they will certainly tell him, make an independent judgment, but assuming he does go in this direction, this is what donald trump now has to worry about, if the recommendation comes, from a professional prosecutor, to merrick garland, it's nearly inconceivable he will reject it. so in some ways this kind of sets the table for an indictment decision that garland just has to endorse or ratify rather than make initially. >> what would that look like? if he were to make a decision, one way or another, what would that look like, barbara? >> well, it is still merrick garland who gets to review

these. just as we saw with william barr overseeing robert mueller. if merrick garland accepts those recommendations, then the case goes forward, perhaps an indictment. if however merrick garland wants to reject the recommendation, one way or the other, he must report that to congress. so there is some transparency here, if merrick garland has a heavy hand and decides to overrule a decision of a special counsel, then there is some accountability there. but i think the way that the regs are set up, it is likely that merrick garland will defer to the judgment of jack smith. and by the way jack smith as harry said, is someone with a really great reputation in the justice department. he's been seen as a bit of a fixer. he came in to lead the public integrity section after the debacle involving senator ted stevens you may recall in the early part of the obama administration. we saw jack smith come in to take that oefrmt he later went in as a fixer in the middle district of tennessee to be the

acts u.s. attorney. so he knows how to step in to situations and get things done. >> i also want to bring in "new york times" washington correspondent michael schmidt and nbc's vaughn hillyard is here as well. michael, let me start just w-just sort of the big picture, because you have covered both of these that are going to be a part of this case. obviously mar-a-lago, the documents case, but also the key aspects of the 1/6 case, specifically the overturning of the 2020 election, and get your reaction to the special counsel, and where you think this is headed now. >> well, i thought it was interesting how the attorney general used the word obstruction more than once, in regards to these investigations. we knew that in regards to mar-a-lago, that was something that they were looking at. if i heard the attorney general correctly, he said that that was also something that was being looked at in terms of january 6th. that is something that i had

not, i don't believe, i had been reported and that we knew about. i think the best way to think about the january 6th part of it is that this special counsel will be looking at everyone who is essentially involved in january 6th, and overturn the election, but was not a rider on the ground that day. these are the people who were trying to pull the levers out to try to get the election overturned, whether it it was donald trump or his attorneys or others helping him across the country. so with the major investigations that are looking at rioters will stay at the u.s. attorney's office in washington, and look, this special counsel will have a less dramatic feel to it than the mueller investigation. in the mueller special counsel, the president essentially at any point could have gotten rid of mueller it was a special counsel investigating the president of the united states, the same person overseeing the department, and trump was

actively taking moves to interfere with that investigation, and talking about cutting it off, and using his powers to cut it off. the white house in this case has no sort of interest like that and will be steering clear of it. this will probably proceed more like a typical federal investigation. but at the same time, a move like this really does raise the stakes, and the significance of what is going on. >> yes, to steer clear of it, let me just reiterate something la we got a short time ago, which is again that statement from the white house, via kristen welker, saying the d.o.j. makes decisions about its criminal investigations independently, and we are not involved, so i would refer you to d.o.j. for any questions. vaughn hillyard, have we heard from trump world yet? >> just about in the last minute, it is a short statement but albeit one that is from the former president and now trump campaign spokesman, quote this is a totally expected political stunt by a feckless politicized by the department of justice and of course this is a statement that we have gotten used to hearing over the months and the

years, and donald trump has made himself into a political martyr, he is understandably been the focus of these investigations for years now and i think it is important to know about the political aspect of this, yes, merrick garland, making an explicit mention of his 2024 candidacy, being a part of the necessity to have a special counsel ultimately come and make these decisions. but i think it is also important, it is not just donald trump, it is still the republican party here, and just hear this fall, you will recall, after the mar-a-lago search warrant execution, it was the likes of marco rubio who said in a statement at the time that quote using government power to persecute political opponents is something we have seen many times from third world dictatorships but never before in america. you have had the likes of calls for the defunding of the fbi, you have had calls, you know, from marjorie taylor green to essentially suggesting that we are coming here, this is a republican party that has tried to use this as a political weapon here, and so donald trump will, yes, he may not be the only presidential candidate of

course, what you're seeing right now here, is a realization from the department of justice, that they need to do what it takes to step away, and to try to diffuse this to the extent possible. >> and actually michael schmidt right after nancy pelosi said she would step down from leadership, there was a press conference among republican leaders who will indeed have charge of house come january saying one of their priorities essentially is to look into d.o.j. they have a whole laundry list of investigations they want to do. but one of them is the department of justice, michael. >> yes, i'm not sure how much a decision like this will change the minds of house republicans, or trump supporters. those folks seem to have their minds made up anyway. my sense of this decision is that the attorney general looked at the guidelines, knew what a thorny situation this was, to

have a person running for president, who was under investigation, by the justice department, overstanding by his potential opponent in that race which is just extraordinary in and of itself. and that this will help put some distant between the politics of the moment, the fact that the justice department is run by biden political appointee, and the fruits of the investigation. a special counsel is there to protect the work of the investigators, from the political winds of the moment. so the public will have confidence that the investigation was done by the facts and by the law, and that nothing else interfered with it. so this move is designed to try and insulate that, and protect that fruit, that work that the department has done. that is not always successful but that is the aim. >> let me bring in a former federal prosecutor.

does this accomplish that? does it bring what merrick garland said he wanted it to bring, which is the intense and accountability? >> i think it helps. i agree with mike that i think this is moving the ball forward, right? and you have somebody who is not in a political appointee, who is a career prosecutor, it was said a moment ago, a very respected prosecutor, career prosecutor will come in and make this call and it also i think helps in terms of transparency, because if garland disagrees with any decision he makes, he will have to report it to congress under the regulation. from my perspective, i also don't think it will slow things down. i think attorney general garland was right, you already have fbi agents investigating this, you have career prosecutors working on this, and really to me, this is very, very much like the investigation of paul manafort, which robert mueller took over, it was already far along, and ultimately i think mr. manafort was indicted within five months. >> that was pretty quick.

and i'm wondering what the process is for people who don't remember, or don't know, to be inside of the naming of a special prosecutor, what's the process now? how does this move forward? renato? >> yes, sure, so what is going to happen now is that the special counsel is going to have to assemble a team. there is actually going to be the creation of an office, office of the special counsel, which is effectively like the united states attorney's office, and an ad hoc united states attorney's office, where he is going to take personnel, fbi agents, and i imagine most of them who are already working on this case, will be assigned to that office, he's going to be getting prosecutors, he can't get them from, he could get them from outside the justice department but also inside the department much as special prosecutor mule der and put together a team and ultimately he will have to make a difficult prosecution decision here and i expect and i agree with barr, i don't believe that merrick

garland appointed jack smith to wind down the case. >> barbara, do you think, i know it is a big concern for a lot of people, how much this will delay the process, will it be very little, will it be a lot, and to the whole point of getting up and running, and just getting an officing to, and bringing a-- an office together and bringing a team together, do you think that has already been under way, decisions have already been made, as the conversations were held between merrick garland and the new special prosecutor? how long does it take in a situation like this to actually just start the process of being a special prosecutor? >> well, i heard merrick garland use the word quickly more than once, and so i think that time is of the essence here and that he gets this. so my guess is they didn't call jack smith this morning and said how would you like to a be a special prosecutor. i think they probably have been working on there for some time. i think there has been an expectation that donald trump

would announce his candidacy for president. he even announced that he was going to make an announcement, you know, you a few weeks ago, so my guess is they figured out where the office space is going to be, and that jack smith is really just going to be the leader of a team that already exists. he may want to hire someone to be his top deputy, i suppose, someone who he trusts, whose counsel he respects, but there would alreadien career prosecutors and fbi agents assigned to this kachlts unlike the mueller case, where he was starting from scratch and he did have to assemble a team, you may remember that donald trump called him 18 angry democrats. here they're just going to take all of the prosecutors and all of the fbi agents who have already been working this case and probably physically move them to a different space, to wall them off, from the rest of the justice department, and it might be private office space, but my guess is they have been working on that for the past few weeks, and jack smith will be ready monday morning, maybe tomorrow morning, to sit down and get a briefing from his team, to read what he needs to read, get up to speed. but in the meantime, you know, those agents and prosecutors can continue to do whatever it was that was on their schedules for

monday morning. >> all right. so we are going to have a statement from special counsel jack smith and that is the headline, statement of special counsel jack smith. i will read it in its entirety. because it is fairly prefer. he says, i intend to conduct the assigned investigations and any prosecutions that may result from them independently and in the best traditions of the department of justice. the pace of the investigations will not pause or flag under my watch. i will exercise independent judgment and will move the investigation forward expeditiously and thoroughly to whatever outcome the facts and the law dictates. clearly from the wording there several times indicating that he wants to get this moving right now, lisa. >> absolutely. and between garland's speech and what jack smith has said, there is definitely an emphasis on rapidity and speed. and so i'm glad to see that. i also agree with barb that this is not going to be an operation

where you have to collect resumes and hire a bunch of people from the outset. maybe he hires a couple of people to staff directly, but merrick garland made it very clear, he has the utmost of confidence of the prosecutors and investigators working this case so far. he didn't say that accident limit he was also trying to signal to the american public, you should have confidence in those people, too, because many of them will continue to work on these investigations, chris. >> all right. harry litman, we don't have but three or four minutes left, but if you could look at the heart of these two cases, what sort of is the key points, what are sort of the key points, that the special prosecutor is going to have to look at and get to to make a decision? what are they and let's start if we can, with the january 6th and interference in the 2020 election. >> all right. well, i actually, if i could, would start with mar-a-lago, because that is much closer. but for both cases, and really, january 6th, a cluster of cases, the biggest thing is going to be

about intent. we've seen the facts, jack smith's team knows more than we, do but you talk about criminal laws being a combination of act and state of mind. so in mar-a-lago, i would actually, bash and colleagues, just gave us a 160-page memo, in law and security, that is the simulation of the actual kind of memo they will put together for smith and then for garland. it will go through the facts and the law, and the big thing is how do you, we know that these things were done, we know that he not only took away the documents, but that he then said, you can't have them back. how do you get around an argument that, well, i didn't know, i declassified, all of those things, the prosecution is in the prosecution memo like the one barb and colleagues have prepared. similarly, on the january 6th

side, it is all about, is there any argument that the president at the time thought well i really won, or it was awe all justified. it shouldn't change the result but that would be what they would need to really button it up and make a final decision. so it is all about the kind of im ponderable recesses of trump's mind and how you prove that two 12 jurors with circumstantial evidence and trump and what mark meadows said to others. at this point there is really a wealth of evidence and we've probably seen about two-thirds of it through the january 6th committee. >> and it requires careful consideration and this has extraordinary implications, unprecedented, and when they get to a moment in a case like this, how difficult or even potentially easy is, it and does it have to an easy decision for them to say okay, let's go ahead and prosecute? >> i think in a case like this,

if it is a close call, they're going to err on the side of not bringing charges. i think when you're going after the president of the united states, even though you know, you prosecute without fear or favor, it is so extraordinary, and the idea that you have to be able to convince a jury beyond a reasonable doubt based on harry said, evidence of intent, likely circumstantial evidence, and you know, prosecutors are fond of saying criminal law is not fond of gray areas, it is for shays of black and white and only if you can show black and white that donald trump violated the law and committed a crime here do i think charges will be filed. and jack smith is the plan to do it. . he has a reputation for scrappy and go getter, hard charger, no done in sense and i think if there is a case to be made, he will make it. >> lisa, your final thoughts. we've got about 30 seconds. >> donald trump is the person that we all keep talking about as the driver of this. and i want to suggest one other, and that's jim jordan, this morning, chris, he sent a letter to the department of justice to merrick garland in particular, outlining what he thinks of garland's obligation to preserve

documents and provide a number of people within the department of justice within the fbi for testimony the minute the 118th congress starts this. appointment gives merrick garland some legitimate plausible deny ability when he is called upon to give testimony to the house judiciary committee that he doesn't actually know what the status is of the investigation on a moment by moment basis. >> i can't imagine a better panel to have with me on this extraordinary afternoon. thank you so much. that's going to do it for me today. i'm chris jansing, hallie jackson will pick up our coverage next. nsing, hallie jackson will pick up our coverage next. ♪ ♪are you ready for me♪ ♪are you ready♪ ♪are you ready♪ (vo) verizon small business days are back. and there's never been a better time to switch! get our best offers of the year on business internet. help your business stay ahead with the reliable connection your business deserves.

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♪ call one eight hundred,est resul eight million ♪ so let's get to that breaking news as we come on the air from here in washington. the attorney general, naming a special counsel to handle the multiple investigations into former president donald trump. the mar-a-lago case, on the handling