Garland has ignored calls for a special prosecutor for the Bidens. Appointing one for Trump will make it harder to keep resisting.
Garland has ignored calls for a special prosecutor for the Bidens. Appointing one for Trump will make it harder to keep resisting.
A ttorney General Merrick Garland has appointed longtime prosecutor Jack Smith to be the special counsel in investigations — plural — in which former president Donald Trump is implicated.
The irony is rich. The reason for appointing a special counsel is to create a layer of insulating independence, assuring the public that the conduct and outcome of a criminal probe are being driven by pure law-enforcement considerations, not by politics. Realistically, though, the special counsel provides no such assurance. In our constitutional system, the authority to prosecute is executive, so any federal prosecutor — special or ordinary — exercises power as a delegate of the president. There is no getting around the fact that Jack Smith, as he decides what to do about Donald Trump, will answer to the attorney general and to President Joe Biden, against whom Trump hopes to run in 2024.
But the irony does not end there. Not by a long shot.
It’s not enough to say the conflict-of-interest concern in a special-counsel situation flows from politics. You have to understand exactly what the politics are. In a normal situation, it’s a simple analysis of partisanship: The Biden Justice Department serves the Democratic president, and the subject of the investigation is the president’s Republican rival; ergo, we need a special counsel, lest the public believe the Democrats are using the government’s law-enforcement power to neutralize a threatening political opponent.
In our almost-inconceivable situation, however, these are not the politics we’re dealing with. The Democrats want to run against Trump. The last thing they want is to neutralize him. They believe he can count on the subset of pro-Trump Republicans who adore him to vault him to the GOP nomination, thereby vanquishing Republican candidates who would pose more of a threat to Biden in the general election. Then, the thinking goes, Trump’s deep unpopularity with the general electorate would guarantee that Biden and the Democrats thrash Trump in the general election.
Here, then, the politics are upside-down. The Democrats’ incentive is not to prosecute Trump; it is to make sure he is not prosecuted — at least as long as he is a viable candidate for the Republican nomination.
There’s a corollary. In the usual situation, the special counsel is appointed to give the public confidence that any decision to indict a political rival of the incumbent administration is driven by evidence, not partisanship. Yet here, Democratic partisanship is what would save Trump from being charged, not drive an indictment against him. That is to say: Because Democrats want to run against Trump, a Trump indictment is the only thing that would overcome public suspicion that the charging decision is driven by politics.
Bear in mind as you watch this unfold: What I have just explained is reality, but it will not be reflected in the public rhetoric.
For his own political reasons, personal vanity, and legal defense, Trump must project that he is the presumptive GOP frontrunner who would surely defeat Biden in November 2024. Therefore, he will claim that Smith has been appointed because Democrats fear running against him. He’ll say they know he is completely innocent, and therefore they need to create an illusion of prosecutorial independence to conceal the fact that any case against him is spurious — a prosecution solely to benefit Biden by removing Trump from contention. Obviously, Trump is not going to say, “Biden wants me in contention because I’m the only guy he thinks he can beat.” So instead, as a Trump spokesperson put it this afternoon, reacting to Smith’s appointment, “This is a totally expected political stunt by a feckless, politicized, weaponized Biden Department of Justice.” In point of fact, the “politicized” decision would be to refrain from charging Trump.
For the special counsel’s part, as one would expect, Smith’s public statements are responding to Trump’s rhetoric, not to the strange reality of 2024 politics. Smith vows to “conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice.” He says he will work “expeditiously” and be prepared to file charges if that is the “outcome the facts and the law dictate.”
These assurances are intended to counter Trump’s claims that Biden and Garland are controlling things, and that if Trump is charged it is because politics, not “the facts and the law,” dictated that outcome. Left unaddressed is the reality of the situation: The partisan incentive here is not to proceed expeditiously; it is to drag things out, regardless of the facts and the law, for as long as Trump is a viable candidate for the GOP nod.
In appointing Smith, Garland made sure to assign to him both of the two most prominent investigations implicating Trump: the January 6 obstruction of Congress’s confirmation of Biden’s victory, and the Mar-a-Lago documents case. Interestingly, when the FBI searched Trump’s estate in August, I pointed out that the Biden DOJ’s main agenda was to make a January 6 case against Trump. There was pushback on that — insistence that the Mar-a-Lago search was an entirely separate matter, driven solely by the government’s compelling need to recover defense secrets and presidential records.
To be sure, the government absolutely wanted its documents back (they are government property, not Trump’s). Still, investigators have always known that the search might yield evidence bearing on Trump’s intent and actions in connection with the derailing of the January 6 joint session of Congress. The two investigations are not, and have never been, fully separate. We should not be the least bit surprised, then, that one prosecutor will now be responsible for both of them.
Will he be responsible for more than that? I’ll have more to say on this in my Saturday column. For now, suffice it to say there are already other federal investigations in which Donald Trump is implicated, and there are apt to be more still. I suspect that Garland will make Smith the all-purpose prosecutor for Trump matters going forward. Again, the main point of the special-counsel appointment is to create a deceptive appearance of prosecutorial independence from politics. If Smith does become the all-purpose Trump repository, Garland — and, derivatively, Biden — can keep pretending that they have nothing to do with Trump investigations. Alas, the Constitution and the special-counsel regulations say otherwise.
The main risk of this appointment for Biden and his attorney general is unrelated to Trump. At this point, with Trump, they are playing with house money: If he does not get charged, he is a political asset for Democrats in the 2024 campaign; if and when he is no longer a viable GOP candidate, he can be charged and anti-Trumpers everywhere will exult. Win-win.
No, the risk here is a special counsel for the Biden investigation, which the Justice Department and Democrats refer to as the Hunter Biden investigation — the better to obscure that the significance of the probe is Joe Biden’s connection to his family’s monetization of his political influence, particularly as it relates to millions of dollars from China and other hostile and corrupt foreign regimes.
Garland has ignored calls for a special prosecutor for the Bidens. Appointing one for Trump will make it harder to keep resisting. The appointment of Smith strengthens the Republican argument that, if Garland is really the nonpartisan straight arrow he purports to be, he must appoint a special counsel for the Biden probe. It is not enough to say evenhandedness requires this; the blunt fact of the matter is that the Biden Justice Department’s conflict of interest is markedly more obvious and profound in connection with an investigation of Biden than of Trump.
The Biden probe cries out for a special counsel because an ordinary prosecutor answering directly to Biden and his attorney general cannot make a credible decision not to prosecute — it would be seen as political. Paradoxically, the Trump investigations are getting a special counsel, but if Jack Smith decides not to indict, that decision will not dispel suspicions that partisan politics called the tune.