No, There Shouldn’t Be a Special Counsel for Pence

T he Washington chatter about whether there should be a special counsel appointed to probe former vice president Mike Pence’s unlawful retention of classified intelligence is understandable. But not because there is any basis for such an appointment. The problem is that Attorney General Merrick Garland politicized the special-counsel process by appointing one for Trump on a false premise. It is that pretext, not the special-counsel regulations, that is driving the question of whether consistency now requires appointing one for Pence.

The silliness should stop. When you’ve dug yourself a hole, it’s better to stop digging — making the first error does not oblige Garland to make the second one.

For reasons I reiterated in a recent column, the special counsel (formerly known as “special prosecutor” and “independent counsel”) is a pernicious institution that should be avoided whenever possible. The only time it is arguably necessary — and, under the governing regulations, presumptively necessary — is when (a) there are concrete grounds for a criminal investigation, and (b) — here’s the salient consideration — the Justice Department is beset by such a profound conflict of interest that it cannot credibly conduct that investigation under normal Justice Department processes.

There was no reason that the Biden Justice Department could not investigate Trump, as it had been doing for nearly two years without any problem or conflict in connection with the January 6 and Mar-a-Lago documents investigations. Yet, on November 18, Garland made the decision — a political decision, not a law-enforcement decision — to appoint Jack Smith as special counsel to take over the Trump probes.

Soon after the midterm elections, Trump formally announced his candidacy for the presidency in the 2024 election. Biden expects to be the Democratic nominee. Democrats expect Trump to base his campaign on the allegation that Biden is corruptly using the government’s law-enforcement and intelligence apparatus as a political weapon against Trump and his base, and that if Trump is indicted, it is because Biden wants to remove his top rival from the field. Ergo, Biden wants to pretend that he has utterly nothing to do with any investigation or prosecution of Trump. I say “pretend” because, in our constitutional system, criminal investigation and prosecution are executive functions; Biden is the chief executive in whom all executive power is reposed; all federal prosecutions in the United States are brought under his authority. That does not make such prosecutions politically motivated; it is simply a constitutional fact.

Nevertheless, to try to help Biden obscure this stubborn reality, Garland appointed a special counsel to take over the Trump matters. The idea was that now Biden and his attorney general can project the illusion of detachment — i.e., what happens to Trump is entirely up to Special Counsel Smith. But it’s a con job: By regulation, Smith reports to Garland and is bound by Biden Justice Department policies; and the power he wields is Biden’s executive power.

This was a blatant elevation of politics over law enforcement. There was no conflict of interest in the Biden Justice Department’s conducting an investigation of Trump — indeed, of any Republican, and of almost any Democrat. The only real conflict would be the Biden Justice Department’s being in a position of investigating top Biden administration officials, and especially Biden himself, or members of Biden’s family. Yet, even as he gratuitously appointed a special counsel for Trump, Garland had refrained from appointing one in connection with the so-called Hunter Biden investigation — which is really the Biden family investigation, in which the president is implicated in his family’s cashing in on his political influence to the tune of millions of dollars from corrupt and anti-American foreign regimes.

Because he had politically and erroneously appointed a Trump special counsel to investigate the former president’s mishandling of classified information, Garland was left with no alternative but to appoint a special counsel when Biden’s mishandling of classified information became public. Let’s follow the bouncing ball, though: The fact that the cases involve classified information has nothing to do with whether a special counsel should be appointed or not. What controls special-counsel appointments is the question of conflict of interest, not the type of crime involved.

What Garland did not anticipate — nor did anyone else — was that Pence would be found to have mishandled classified information. But as with Trump, there is no conflict-based rationale for disqualifying the Justice Department from investigating the Pence case. Commentators are now contending that there must be a special counsel for Pence because Garland appointed one for both Trump and Biden on the matter of classified documents. That, however, is the wrong analysis.

Garland brought this problem on himself by politicizing the special-counsel appointment of Trump. At this point, as a practical matter, that bell can’t be un-rung. Smith has already started working on the Trump case. Nevertheless, Garland should not compound the problem by appointing a Pence special counsel. The Justice Department can handle this and any other classified-information cases that arise as long as they don’t require the Biden Justice Department to investigate the Biden administration or the president himself.

If Garland wants to get right on special counsels, he should appoint one for what the media-Democrat complex deceptively label the “Hunter” Biden case. The attorney general should have done that two years ago.