First, a special counsel is appointed by the Justice Department. Trump recently pushed into Attorney General Bill Barr an early departure from the Department after Barr stated that he had not seen evidence of widespread voting fraud and followed Department ethical rules in not disclosing the Hunter Biden investigation before the election. Barr would clearly not make such an appointment and, even if he did, he clearly would not appoint Powell. It is unlikely that acting Attorney General Jeff Rosen would be any more inclined to do so.

Under the Justice Department regulations, such an appointment must not only be in the public interest but based on a finding that that is a need for additional criminal investigation and “[t]hat investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances.” There has been no such findings by the Justice Department despite Barr making it easier for federal prosecutors to investigate election fraud allegations. To the contrary, courts have uniformly rejected the allegations.

Second, even if a special counsel were considered, Powell could not be ethically appointed. Powell served as counsel to the Trump campaign before she was severed by the Trump campaign after making controversial conspiracy theories. (For the record, I was one of the many people critical of the press conference held with Powell and the sweeping conspiracy theories). It would be unprecedented and unethical to appoint a former Trump campaign lawyer as special counsel under regulations designed to avoid conflicts of interest.