Attorney General Merrick Garland has painted himself into a corner with special counsel appointments.
Garland has a ways to go before he threatens the record of his former boss (and mine), Attorney General Janet Reno, who appointed seven independent counsels during the Clinton administration. But he has plenty of time yet to catch up.
Reno—the longest serving attorney general of the 20th century—took some five years to make the seven appointments under her era's equivalent of the special counsel regulations. Garland has appointed two within the space of two months, and is now faced with the question of whether to appoint a third special counsel to investigate the circumstances arising from classified documents having been discovered at former Vice President Mike Pence 's home in Indiana.
Garland's first special counsel appointment of Jack Smith came just after the midterm elections after a search warrant was executed on former President Donald Trump's residence at Mar-a-Lago. Following months of fruitless requests from the National Archives begging Trump to return the documents, as well as a grand jury subpoena, the Justice Department's growing worries over the safety of the documents appeared justified after the warrant recovered hundreds of classified documents.
Smith was also tasked with investigating potential criminal culpability for Trump regarding efforts to overturn the 2020 presidential election, and Trump's potential involvement on Jan. 6 to interfere with the transfer of power. At the time of the Smith appointment , Garland relied on the fact that Trump had announced his intention to again run for president.
But the mere fact that a target of a criminal investigation announced their candidacy for president does not create a conflict of interest for the DOJ—whose only prevents the indictment of a sitting president , not a former president.
And yet, Garland continued to rely on the "public interest" rationale in the Biden case. After the discovery by President Biden's staff that classified documents dating back to his vice president service were found in his private office, and also at his Wilmington, Delaware home, Garland determined that it was in the "public interest" to appoint a special counsel— this time a Trump administration veteran, Robert Hur.
Garland seems oblivious to the fact that his appointments of special counsels is at odds with his frequent assertions that he is confident in the ability of career prosecutors at DOJ to do their job independently. But his obsession with appearance is obvious.
Moreover, in choosing a Trump administration Republican to investigate Biden, Garland appears to be engaging in a blatantly political choice in the hope of further insulating DOJ from any attacks by Republicans.
Despite refusing to answer questions from the media about whether he will appoint a special counsel to investigate the Pence classified documents case, Garland cannot avoid the obvious dilemma he now faces.
Like Trump and Biden, Pence is clearly serious about running for president himself, and Garland's original decision to appoint special counsel for Trump was based primarily on Trump and Biden both being likely presidential candidates. Logically, it is a fait accompli that there must be a Pence special counsel appointment—given that Pence's situation is nearly indistinguishable from Biden's.
Both cases involve classified documents from their time as vice president. Both men are likely 2024 presidential candidates. The only real question for Garland is whether that special counsel should be a Democrat or a Republican—which is a sad situation for him to be in, given his interest in keeping DOJ apolitical.
Garland could have avoided all of this by simply having the prosecutorial courage to live by his expressed words of confidence in the career prosecutors at DOJ and determining that neither the Trump nor Biden cases required a special prosecutor.
But his fixation on how it all looks politically has put Garland into a trick box of his own making, where he must trigger the special counsel regulation any time a potential investigation is likely to create a partisan fervor. And in today's climate, there will be no end to that category of cases.
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