Mr. Attorney General, It's Time to Appoint a Special Counsel
The regulations and the public interest demand it
As expected, on Tuesday Donald Trump announced he is running for president in 2024. As I wrote in my last post, his candidacy will not shield him from the assorted pending criminal investigations, despite what he may hope. But now that Trump’s candidacy is official, I’d like to elaborate on my other argument in that post: that attorney general Merrick Garland should now appoint a special counsel to complete the federal investigations of the former president.
The DOJ Special Counsel Regulations
There are at least two ongoing federal criminal probes where Trump is potentially implicated: the investigation into the events of January 6, 2021 and efforts to overturn the election, and the investigation into the documents wrongfully taken from the White House and recovered from Mar-a-Lago. (There are state investigations going on as well, but they are not implicated by any of the policies discussed here.)
Department of Justice regulations provide for the appointment of a special counsel in cases where DOJ may have a conflict of interest in conducting a criminal investigation. The special counsel regulations, which begin at 28 C.F.R. § 600.1, provide:
§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.
Based on this language alone, the case for appointing a special counsel to oversee the Trump investigations seems compelling. Now that Trump has announced, Biden’s DOJ is investigating and potentially prosecuting a candidate who will undoubtedly be a front-runner for the nomination to run against Biden in 2024. It’s hard to imagine a starker conflict of interest. Any resulting prosecution could easily lead to a perception that the attorney general is trying to “take out” one of his boss’s chief political rivals.
Some have suggested there is not a real conflict because Biden has not officially declared he is a candidate. But all indications are that Biden does intend to run for a second term. (Would those making this argument prefer that we get six months or more further down the road, Biden officially announces, and then we have a special counsel?) But regardless, even if the candidate were a different Democrat, a conflict of interest remains if a Democratic DOJ is investigating a leading Republican candidate.
It’s clear there is a conflict of interest. Even some who argue against a special counsel agree there is a conflict here for DOJ. But that’s not necessarily the end of the inquiry. Under the regs, it is still up to Garland to determine whether the public interest favors appointing a special counsel or keeping the investigations within the “normal processes of the Department.”
The Arguments Against a Special Counsel
Here are some of the arguments I’ve seen against appointing a special counsel, and why I don’t find them persuasive:
“It Would Take Too Long”
A primary argument against the appointment of a special counsel is that it would result in too much delay. In an article in Just Security, Larry Tribe and Dennis Aftergut argue that it’s “too late” to appoint a special counsel. They claim it would take too long for the new prosecutor to get on board, hire staff, and get up to speed. They argue we can’t afford any additional delay because the 2024 election looms, and a new Republican president could potentially scuttle any investigation that was not yet completed.
But I don’t think there needs to be a lot of additional delay. A special counsel need not start from scratch. The prosecutors and investigators already working on the investigation could simply be detailed over to the special counsel’s office and continue their work. It would take a little time for the new boss to get fully up to speed, but even while that’s happening the investigation could continue.
Practically speaking, if you’re worried about a new Republican administration undoing any case against Trump, that can’t really be avoided. Even if DOJ hurried to convict Trump, as Tribe and Aftergut would prefer, a future Republican president could pardon him. You can’t remove the possibility of future political shenanigans if Republicans take the White House in 2024.
The notion that we should hurry up and prosecute someone because an election is coming injects political considerations into the investigation and is not likely to lead to good outcomes. It’s better just to follow the regulations and the law and not try to game out possible future political interventions.
Given the Gerald Ford experience after pardoning Nixon, I don’t think it’s a foregone conclusion that any future Republican leaders would intervene – but they will have to bear the political heat if they do. Garland can’t decide what’s in the public interest today based on such speculations about the future.
“It Won’t Matter for Public Perception Anyway”
Another argument against the appointment of a special counsel is essentially: it’s hopeless. Opponents argue that Trump’s supporters are going to see any prosecution as political, no matter what. Therefore, a key goal of appointing a special counsel – to provide some independence from DOJ so any resulting charges are not seen as politically motivated – can’t really be achieved here.
I think this is only partially true. There’s probably 40-45% of the country who won’t accept any prosecution of Trump as legitimate, no matter what the circumstances. And there’s probably another 40-45% who can’t understand why the guy isn’t in jail already and will readily accept any criminal charges as being fully justified.
But that still leaves a not-insignificant group of potentially persuadable people in the middle. And for that group, I think the appointment of a special counsel still serves its purpose. It provides a layer of insulation from the political appointees at DOJ that will make it easier for reasonable people to accept the legitimacy of any prosecutorial decisions. That’s still important.
In a recent op-ed, former U.S. Attorney Harry Litman argued the country is so polarized that it would be pointless to appoint a special counsel, who would just be “demonized by the MAGA crowd” as a “political hack.” Tribe and Aftergut and another former U.S. Attorney Chuck Rosenberg make a similar argument. They are probably right about the demonization by Trump’s true believers. But I don’t think determining what’s in the public interest should be guided by the expected reaction of the MAGA crowd. And for the rest of the country, the appointment of a special counsel can still serve its intended purpose.
“It Doesn’t Really Take Garland Out of the Decision”
Another argument against a special counsel is that it doesn’t really remove Garland from the equation. The attorney general retains ultimate control over the investigation, and the special counsel would report to him. Therefore, the argument runs, the goal of trying to remove any perception of political influence cannot really be achieved. In other words, a special counsel is not really that independent.
This is really an argument against the entire special counsel regime, not against the appointment of one in this case. This is how the regulations are set up. The special counsel does have a fair amount of independence and is not subject to day-to-day supervision by anyone at DOJ, although he or she must abide by DOJ regulations. And if the attorney general overrules a recommendation by the special counsel, he or she must explain that to Congress. But the attorney general is ultimately still in charge.
This was the system put in place after the old independent counsel law mercifully was allowed to expire in 1999. That law gave the independent counsels complete authority to run their investigations with no DOJ oversight. That led to excesses and abuses such as the Ken Starr/Whitewater investigation, which ultimately convinced Congress the law should not be renewed.
The current special counsel system is thus a compromise that seeks to provide a degree of independence without allowing special counsels to go completely rogue. It’s not perfect, but I think it’s pretty good and is certainly preferable to the old independent counsel law. Even though the attorney general remains ultimately in charge, there would be enormous political pressure on Garland to allow a special counsel to do his or her job without interference.
“It Didn’t Work With Mueller”
I’ve seen people argue, essentially, “Special counsel investigations don’t work – look at the Mueller investigation!” Many on the left were disappointed that Mueller failed to indict Trump, or even to take a position on whether he obstructed justice. (Of course, many of those same people accuse Garland of being a spineless wimp for not having indicted Trump already – which might suggest they would prefer that Garland put the case in someone else’s hands!)
But the Mueller investigation record is not evidence that special counsels are ineffective. I’d argue Mueller did a terrific investigation and did it very quickly. He obtained indictments of the Russians who interfered with the 2016 election and provided an invaluable, detailed report for the public about their activities. He also did an exhaustive investigation of potential obstruction of his own investigation and indicted and convicted a number of those in Trump’s inner circle. My only real quarrel with Mueller was his refusal to take a position on whether Trump obstructed justice. Although I understood his reasoning, I didn’t agree with it.
Mueller’s real problem was that he trusted an attorney general whose primary goal was protecting the sitting president. Bill Barr betrayed Mueller by announcing himself that Trump did not obstruct justice and by giving a misleading public summary of Mueller’s report before it was released. Then Congress failed to impeach Trump for obstruction of justice, even though Mueller’s report clearly set out a basis for impeachment. If you’re unhappy with the outcome of the Mueller investigation, I’d suggest the fault does not lie primarily with Mueller, and certainly not with the special counsel system.
And Merrick Garland is not Bill Barr.
“Trump Should Not Be Able to Force This Result”
I’ve also seen it argued that Trump should not be able to “engineer” the appointment of a special counsel by announcing his candidacy. I don’t really understand this argument. It seems to presuppose that Trump would obtain some benefit from the appointment of a special counsel; that it would reward him for announcing. I don’t see how that’s true.
The appointment of a special counsel means there is a seasoned prosecutor whose sole job is to criminally investigate one individual or event. A regular prosecutor must juggle other cases and responsibilities. Garland and his senior staff have a few other things on their plate – to put it mildly. A special counsel has one job.
Indeed, this is often a basis for criticism of the entire special counsel idea: that it’s dangerous to put a prosecutor in charge of investigating just one individual. It may create incentives for that prosecutor to find some charge – any charge – to justify his or her existence. (See the recent debacle led by John Durham, for example.)
I’ll bet if you surveyed those who have been the subject of a special counsel (or independent counsel) investigation, almost none of them would say that things got better for them, in terms of the investigation, after a special counsel was appointed. On the contrary, having a senior prosecutor whose sole mission is to focus on you is likely to make the investigation longer and more intensive. (And let’s not forget Trump’s famous reaction when he learned that Mueller had been appointed: “I’m f**ked.”)
The only way the decision to appoint a special counsel could be said to benefit Trump would be if it resulted in significant additional delays. But as I argued above, that does not need to happen.
Appointment of a special counsel provides the best opportunity for the greatest number of people to accept any prosecution decisions – whether to charge or not to charge. The regulations call for it, the public interest demands it, and the arguments against it are not persuasive.
Mr. attorney general, it’s time to appoint a special counsel.
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