Attorney General Merrick Garland’s Decision to Name Special Counsel for Trump Is a Mistake

Attorney General Merrick Garland’s appointment of a Special Counsel to oversee two investigations involving former President Donald Trump turns the use of a special counsel into a political football that undermines much of the work Garland has done to de-politicize the Justice Department. This was not Garland’s intention.

No, Garland’s intention was no doubt to continue seeking to undo the harm his predecessor Bill Barr did and restore the faith of the country in the integrity of DOJ.

Garland has taken many successful steps towards this aim, including renewing DOJ’s commitment to the Hatch Act, and there is little doubt that he is personally a man with great moral integrity. But he has sadly misjudged the impact of his decision. Instead of insulating DOJ from politics, he has made it into a target for all sides.

Within hours of Garland’s appointment of a Special Counsel, the former President was making public pronouncements of how the appointment was “the worst politicization of justice in our country” while exhorting the Republican party to fight for him. Republicans immediately began calling for an appointment of a special counsel to oversee the Hunter Biden investigation.

And the many Americans impatient with the lack of accountability for Trump’s actions weighed in with points of view ranging from Garland being corruptly in cahoots to protect Trump, to Garland lacking the courage to prosecute Trump, to the appointment being confirmation that Trump will be prosecuted. This is hardly the kind of insulation Garland seems to have sought.

Even worse, Garland’s own statement suggests that DOJ would not be able to act impartially when it comes to investigating and making charging decisions about Trump. Again this would appear to be a self-inflicted injury because Garland does not seem to believe at all that the public servants at DOJ are incapable of carrying out fair and impartial justice.

Indeed, that is exactly what DOJ has been doing in the investigations involving Trump thus far and Garland did not see any need to appoint a special counsel until now. So what changed?

What changed is that Trump declared himself a candidate. Garland specifically cites the fact that Trump having declared himself to be a candidate for president again to be the trigger for his decision that appointment of a special counsel is now required.

Attorney General Merrick Garland announced Jack Smith as special counsel for the Justice Department’s investigations into the actions of former U.S. President Donald Trump.

U.S. Justice Department

While it is true that Garland also cited President Joe Biden’s plan to run again as part of the reason for the special counsel decision, the dispositive factor is obviously Trump’s announcement since Biden’s intent to run for a second term has been plain for quite some time. But the problem with Garland’s rationale is that it allows Trump’s political actions to affect how DOJ behaves, and that is wrong.

There are certainly legitimate circumstances where a Special Counsel is necessary—investigation of a sitting president and even of current members of the president’s cabinet may necessitate a Special Counsel to provide some independence from the appearance of the executive branch investigating itself. But Trump is not a sitting president and his mere declaration to be a candidate again does not create a need for a Special Counsel.

Making the appointment after Trump declared his candidacy inextricably turns Garland’s decision into a politically based decision. Again, just the opposite of Garland’s aims for DOJ.

Appointment of a Special Counsel for Trump also gives Republicans and Trump supporters renewed energy about calling for a special counsel to investigate Hunter Biden—code for investigating President Biden. Although there is precedent for using a special prosecutor to investigate the family member of a sitting president as in the case of Billy Carter who was the brother of then-President Carter, there is no need for one in the Hunter Biden case for two reasons.

First, the Hunter Biden investigation began prior to the Biden presidency. Second, Garland has already taken the precaution of ensuring the integrity of that investigation by keeping the original Trump-appointed prosecutor on the case.

Now, however, his precautions will be undercut at least in the court of public opinion by the argument that if a presidential candidate deserves a special prosecutor, then surely the son of the sitting president also deserves one. Notice the flawed premise in this argument is the idea that appointment of a special prosecutor is the same thing as bringing criminal charges.

Such a distortion of the role of a Special Counsel is to be expected, however, given all of the opinions now put forth that Garland would never appoint a Special Counsel just to decline to bring charges.

While the evidence against Trump seems very strong and, in my opinion, would easily support multiple criminal charges, I am of the equally strong opinion that Merrick Garland would take as fighting words the idea that his appointment of a special prosecutor meant that he had prejudged whether Trump should be charged or not. No, Garland will leave that recommendation fully up to the Special Counsel.

There’s a common adage that judges like to use when pushing parties in a case to reach a settlement. That adage is that a good compromise makes neither side happy. Garland has certainly met that standard by managing to anger both Trump haters and Trump supporters. But a compromise wasn’t what was needed to protect the rule of law.

What was needed was for Garland to show confidence in his own integrity and the integrity of DOJ to follow the law and facts in his words “without fear or favor.” No Special Counsels need apply.

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