Attorney 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.
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