by Attorney General Merrick Garland’s decision to appoint a special counsel to investigate former President Donald Trump is a miscalculation, and the main problem is timing.
The impressive scope of the mandate that Garland bestowed on special counsel Jack Smith likely doomed a swift and focused determination of whether Trump should be impeached.
The impressive scope of the mandate that Garland bestowed on special counsel Jack Smith likely doomed a swift and focused determination of whether Trump should be impeached.
Despite Garland’s assurances that special counsel will not hinder the investigation, reality suggests otherwise. Smith will oversee not one, but two ongoing investigations: efforts to disrupt the counting of Electoral College ballots on January 6, 2021, and Trump’s possession of classified documents and presidential records at his Mar-a- Lake after leaving office.
For the former alone, the Attorney General has directed smith to investigate whether “any person or entity unlawfully interfered with the transfer of power after the 2020 presidential election or the certification of the Electoral College on or about January 6, 2021.”
Looking at “any person or entity” is too broad a scope that takes a lot of time and takes focus away from Trump. It shouldn’t take long for Smith to be briefed by the existing Justice Department team, but Garland’s sweeping tenure could undermine the goal of making final procedural decisions well before the 2024 presidential primaries.
When Garland announced the move Friday, he noted that the launch of Trump’s 2024 presidential campaign influenced his decision to appoint a special counsel. According to the attorney general, the appointment of a special counsel “underscores the department’s commitment to independence and accountability in particularly sensitive matters.”
But the newly appointed special prosecutor will inherit the team of FBI agents and government prosecutors who have been conducting these investigations for months. If there were any taint of bias on the part of these investigators, and there isn’t, simply allowing the same Justice Department personnel to continue the investigation under a new chief would not resolve any alleged conflict. Smith will simply be a new supervisor for the same researchers.
Furthermore, Garland’s comments implicitly acknowledged the perception that a standard and strict investigation of Trump by the Justice Department could be perceived as the appearance of a conflict of interest, undermining his own oft-repeated statement that No one is above the law. Not to mention, past practice shows that the Justice Department has regularly shown that anyone can be held accountable, without recourse to special counsel. Examples abound.
Famously, local federal prosecutors investigated Spiro Agnew while he was vice president for taking bribes when he was a civil servant in Maryland. Attorney General Elliot Richardson negotiated a plea deal, which required Agnew to immediately resign from him in October 1973.
It is also common for Justice Department attorneys to investigate and indict sitting members of Congress. Former Republican representatives Chris Collins of New York, Duncan Hunter of California and jeff fortenberry from Nebraska were indicted by federal prosecutors and convicted. Collins and Hunter were indicted during the Trump administration, and Fortenberry was indicted last year. trump subsequently pardoned hunterand fortenberry is appealing his sentence.
Regular government lawyers have also successfully prosecuted politicians from the party that controls the White House. During the Trump administration, for example, the Justice Department charged former Democratic Rep. Michael Myers with electoral fraud. He pleaded guilty and, in September, was sentenced to 30 months in prison. No special attorney was used.
And the alleged crime at the center of the Mar-a-Lago investigation also has a precedent for being handled by grassroots Justice Department attorneys. During the George W. Bush presidency, Sandy Berger, a former Clinton administration official, was successfully prosecuted for illegal possession of classified documents.
Whether Trump is a former president or running for re-election makes no difference. Alexander Hamilton, in Federalist 65, imagined that a former president could be criminally prosecuted after leaving office for his past conduct, writing that “he will still be subject to prosecution and punishment in the ordinary course of law.” And in 2020, the Supreme Court ruled that Trump could be investigated by the Manhattan district attorney while he is in office.
The appointment of special counsel does not achieve the perceived desire to distance Garland from the decision to impeach Trump.
Furthermore, the appointment of special counsel does not accomplish the perceived desire to distance Garland from the decision to impeach Trump. Initially, Smith will determine who, if anyone, will be criminally charged, but Garland can overturn Smith’s decision if you so choose.
Under government regulations, the attorney general may conclude that “an action proposed by special counsel was so inappropriate or unwarranted under established departmental procedures that it should not be pursued.” If Smith impeaches Trump, Garland can quash him. If Smith decides not to impeach Trump, Garland can quash it. And even if Garland decided not to override Smith, critics would still wonder why he didn’t, since he had the authority to do so. The bottom line is that Garland will remain at the center of it all.
Following Garland’s announcement, Trump urged Republicans to “fight back” against the special counsel’s investigation. Georgia Rep. Marjorie Taylor Greene called for Garland’s removal and for the special counsel not to get any funding in a tweet, and Texas Sen. Ted Cruz tweeted: “This is Trump Mental Disorder Syndrome, but this time with a gun and a badge. #CorruptJustice.”
Extreme partisan backlash from Republican leaders aside, appointing special counsel was a mistake on Garland’s part, especially if Smith literally sticks to his sweeping mandate to investigate whether “anyone” unlawfully interfered with the peaceful transition of power. . That is a difficult task. I think Trump’s reckoning day is long overdue, and Garland’s overly cautious decision to appoint a special counsel may continue to be postponed on that day.
