In appointing a special counsel to investigate former President Donald Trump, Attorney General Merrick Garland was, in theory at least, trying to insulate the matter from politics as much as possible.
That notion, of course, did not even last the day. Within hours, the newly named special counsel, Jack Smith, came under fire from the Trump team as just another partisan inquisitor.
The reality is that a special counsel was never going to be accepted by Trump or his most fervent supporters as a credible, independent investigator, which the attorney general surely knew. Garland, who has spent more than three decades as a federal prosecutor and judge, was applying an old-fashioned method in a new-fashioned world, following what he felt was the clear mandate of the traditional rules even if they no longer seem adequate to the political moment.
Indeed, the regulation establishing the special counsel never anticipated a president who operated so far out of the country’s norms, and perhaps laws, as Trump.
No matter how nonpartisan Smith’s resume and record may be, Trump will argue that he is being unfairly investigated by agents of President Joe Biden, the man he plans to run against in 2024. By doing so, Trump aims to discredit any possible criminal charges against him for his role in instigating the Jan. 6, 2021, attack on the Capitol or his refusal to return government documents he took when he left office.
“In our intensely polarized society, people are quick to believe the worst about their political opponents,” said Joshua Matz, who served as counsel to House Democrats in both impeachments of Trump. “As a result, no politically sensitive investigation can fully escape charges of partisanship.”
Still, he argued, to those with open minds, the appointment of a special counsel “sends the clearest signal possible within our divided society that these investigations will be carried out fairly.”
Anticipating the criticism, Justice Department officials insisted that the handover would not slow the inquiries and Smith vowed in a statement that “the pace of the investigations will not pause or flag under my watch.”
Indeed, some former government lawyers said it was possible that Smith’s appointment signals that Garland has made a fundamental threshold decision — that he is willing to prosecute a former president and presidential candidate if the evidence is there. Otherwise, this theory goes, there would be no need for a special counsel.
Of the two investigations confronting Trump, several lawyers said, the one looking at his actions leading up to the Jan. 6 attack involves more consequential issues but may be harder to prove. The one examining the government documents is narrower and less profound, yet perhaps a clearer case in terms of obstruction of justice. Even some lawyers who have been allied with Trump have said he faces serious legal jeopardy in the documents case.
While Smith will now evaluate the evidence and make recommendations, it will still fall to Garland to make the ultimate decision whether to bring an indictment in either case.
Robert W. Ray, a former independent counsel who investigated President Bill Clinton and later defended Trump at his first impeachment trial, said the position of special counsel would have more credibility if it were confirmed by the Senate. “As currently structured, it’s doomed from the outset,” he said.
The larger question, he added, was the decision to investigate Trump at all. “Continuing to criminally investigate an announced presidential candidate by the current president’s administration — who himself intends to run for reelection — is an exceedingly bad idea and asking for trouble,” Ray said.
The history of independent prosecutors over the past half century is a torturous one in which the nation has never found a durable, nonpolitical means for holding rogue presidents or other high officials to account.
During Watergate, President Richard Nixon was initially investigated by Archibald Cox, a special prosecutor appointed by the Justice Department. But because the special prosecutor ultimately worked for the attorney general, he was not truly independent, as Nixon showed by ordering Cox fired in 1973 in what became known as the Saturday Night Massacre. Under pressure, Nixon agreed to the appointment of a successor, Leon Jaworski, a dogged prosecutor who uncovered the secret tapes that led to the president’s resignation.
In hopes of protecting future prosecutors from Cox’s fate, Congress created the independent counsel in 1978, an officer who would be more autonomous. If an attorney general determined there were credible allegations against a president or other high officer to be investigated, an independent counsel was selected by a three-judge panel. Such a prosecutor had more latitude, was obliged by law to report possible impeachable offenses by the president to Congress and could be fired by the attorney general only for “good cause” or disability.
Neither party ended up being all that happy with the independent counsel structure, becoming convinced it was a blank check that led to endless investigations. Republicans were soured by Lawrence Walsh, the independent counsel who investigated President Ronald Reagan and the Iran-Contra affair. Democrats grew disenchanted by Ken Starr, whose Whitewater investigation morphed into the impeachment of Clinton for lying under oath about an affair with a former White House intern, an inquiry later completed by Ray.
By the end of Clinton’s administration, there were seven independent counsels investigating him or his top officials, and the law was allowed to lapse in 1999. Instead, the Justice Department created a regulation for the appointment of special counsels who would answer to the attorney general and therefore be less likely to wander too far afield.
But the experience of Robert Mueller, the special counsel who investigated Trump’s campaign for ties to Russia, underscored for many the weakness of this structure as well. Since a special counsel reports only to the attorney general, it still falls to a president’s appointee to decide any legal action.
Because of a long-standing Justice Department opinion that a president cannot be prosecuted while in office — a judgment crafted under two presidents who faced allegations, Nixon and Clinton, and never tested in court — Mueller opted not to say whether he thought Trump had committed obstruction of justice even though his final report included evidence that the president had.
Moreover, the results of a special counsel investigation are not required to be released to the public nor even submitted to Congress. In the Russia case, Attorney General William Barr agreed to make public a redacted version of Mueller’s report, but only after framing its contents in terms favorable to Trump and declaring that there was no obstruction case, moves that drew howls of protest from Democrats.