Opinion Should Garland appoint a Trump special counsel? The best cases — and an answer.


HR King
May 29, 2001
By Ruth Marcus
Deputy editorial page editor |
November 14, 2022 at 7:00 a.m. EST

What should Attorney General Merrick Garland do if Donald Trump declares that he is running for president? Specifically, should Garland name a special counsel to take over the various federal criminal investigations of Trump’s conduct, on the theory that this conflict of interest — an administration headed by one president investigating someone running to replace him — requires bringing in an outside party?

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This is not an easy question — there are strong arguments both for and against. This column will make my best case on either side and — stick with me — tell you where I ultimately come down.
The case for a special counsel. It’s broadly accepted that the Justice Department can’t be trusted to investigate a person who sits atop the federal government that includes the Justice Department. During the Watergate scandal, special prosecutor Archibald Cox was named to investigate President Richard M. Nixon; after Watergate, which included Nixon’s firing of Cox, Congress passed the independent counsel statute. That produced Kenneth W. Starr’s investigation of President Bill Clinton, which famously sprawled far beyond its original focus on the Whitewater real estate investment deal.

Few mourned the 1978 independent counsel statute when it expired in 1999, but the Justice Department recognized the need to bring in outside lawyers in certain circumstances and drafted a set of regulations governing such appointments. The regulations provide for a special counsel when the attorney general determines that investigation or prosecution “would present a conflict of interest for the Department or other extraordinary circumstances” and that appointing a special counsel “would be in the public interest.”

Thus, in 2017, Deputy Attorney General Rod J. Rosenstein — Attorney General Jeff Sessions had recused himself — named Robert S. Mueller III to investigate Russian efforts to influence the 2016 presidential election. “What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command,” Rosenstein explained.
Rosenstein’s action was broadly welcomed as an acknowledgment that the public would have legitimate concerns if the investigation were supervised by political appointees answerable to Trump. “This was an essential and reassuring step after a series of alarming developments,” The Post’s editorial board said.

The conflict-of-interest argument applies with similar force in the reverse situation: Much of the public would be skeptical of any prosecution brought against Trump by political appointees answering to President Biden, who has said he intends to run for reelection. Perhaps, given Trump’s barely disguised interest in returning to office, it would have been appropriate for Garland to already have named a special counsel, but an official Trump candidacy would supercharge the situation past the point where it is tenable.
This is a paradigmatic conflict of interest. It would be hypocritical for those who applauded the selection of an outside counsel in the Russia probe to oppose one now. Declining would also set a terrible precedent — one that those who argue against a special counsel now could regret with a different attorney general in place.
In addition, some of the legitimate concerns that argue against outside investigators no longer apply. Under the regulations, special counsels aren’t entirely independent actors. They are instructed to follow existing Justice Department policy — this is why, for example, Mueller didn’t consider indicting Trump — and, while exercising day-to-day independence, remain subject to the supervision of the attorney general. So there’s less reason than in the past to worry about a special counsel gone wild.

Moreover, the special counsel need not start again from scratch. He or she could take over the existing investigation. Some delay is a reasonable price for doing the right thing.
The case against a special counsel. Yes, it’s a conflict of interest for the Justice Department to investigate the sitting president’s chief political opponent. But as a practical matter, it’s hard to see how a special counsel would assure skeptical members of the public that the investigation is being conducted without political influence.
Let’s be serious: In the current polarized political environment, there’s no one that Garland could choose who would quell the concerns of those who wouldn’t trust Garland to make the call. Any lawyer with Democratic ties will be immediately suspect for Trump partisans, as would any lawyer with Republican ties but a track record of criticizing Trump. On the other side, the task can’t possibly be entrusted to a known Trump supporter. So who, then? The regulations call for “a lawyer with a reputation for integrity and impartial decisionmaking.” A former judge, perhaps, but judges have political affiliations, too. A special counsel won’t do much of anything to solve the problem they’re supposed to address.


And the conflict, although undeniable, is not as acute as when Rosenstein tapped Mueller. Trump’s actions had made clear that he did not respect the traditional separation between the White House and law enforcement; he asked then-FBI Director James B. Comey to pledge his loyalty, then tried to get Comey to drop an investigation into departed national security adviser Michael Flynn.
In contrast, Biden has displayed no inclination to meddle in criminal probes; he has taken pains to say and do the opposite, while Garland has instituted strict firewalls against political interference. He would not tolerate it, and he has a track record to this effect, having allowed a criminal investigation of the president’s son, Hunter Biden, to proceed unimpeded by the Trump-era holdover U.S. attorney in Delaware.
The performance of the latest special counsel, John Durham, underscores the problems posed by naming someone who is, whether as a matter of law or practical politics, largely exempt from supervision by senior department officials. (Durham was named not under the special counsel regulations but under a separate part of the attorney general’s authority.) Durham’s track record in probing the government’s investigation into Trump and Russia is dismal. He has been at it for three years — about twice as long as the Mueller inquiry — and produced just one guilty plea, from an FBI lawyer who falsified an application to the Foreign Intelligence Surveillance Court.

Naming a special counsel because Trump has declared his candidacy risks once again allowing him to game a system that seems always to tilt in his favor. As president, Trump was deemed immune from prosecution under longstanding Justice Department policy. Now — after an extensive investigation — he would be allowed to throw a curveball into the proceedings and, inevitably, add delay and complication. If a special counsel doesn’t assemble his or her own staff but simply relies on the existing crew of prosecutors and FBI agents, will that really provide the necessary assurance against conflict of interest? If the counsel begins anew, any prosecution, trial and inevitable appeal would likely bump up against the 2024 presidential election or beyond, perhaps into a second Trump presidency, during which — Catch-22 anyone? — he could not be prosecuted.
Furthermore, anyone named special counsel could be called on to make one of the most momentous decisions in the history of federal law enforcement: whether to prosecute a former president. Garland, who has earned a reputation for being judicious and nonpartisan, was subject to Senate confirmation. Surely it is better to leave that choice to him than to some outsider who has not gone through that process.
So have I convinced you — and, if so, which way?

I come down, with some trepidation, against a special counsel.
There is no painless solution here, and if there is a hybrid model that would provide some assurance of impartiality without the accompanying downsides, I can’t come up with one. In the end, the words of the regulation offer the guide for the wisest course: naming a special counsel would not be in the public interest, and that’s what has to matter most.



HR All-American
Jan 23, 2018
Cig, I'm assuming that the last paragraph is yours rather than the author's.

Ultimately I agree (setting aside the fact that there are in fact some serious legal problems with the SC statute).

The simple reality is that -- both perceptually and in action -- any and all special counsel know perfectly well what their job is, and what side their bread is buttered on: It's to indict and prosecute the target of their investigation. And so they do. Invariably. Which carries its own form of cynicism, because it's really just a way for politically appointed people to say "wasn't me!" when in fact that's just not true. So, in short, the 'independence' of SC's is complete and utter bullshit. (And worse yet, it's usually low level schmucks that are the only ones who really suffer any consequences, usually for some false statement or obstruction charge which may or may not reflect simple leverage.)

But beyond this, even though people on both sides of the aisle tend to hate the people on the opposite side of the aisle who are confirmed to the post of USAG and insist that they are some form of the Devil, the reality is that most of them -- whether Eric Holder, Jeff Sessions, Bill Barr, or Merrick Garland -- are actually pretty serious and sophisticated people who actually tend to care about their personal reputations and institutional credibility, and who actually take the work and reputation of the Department seriously. (It's the senior nonpolitical staff that you have to worry about.) So on the other side of the coin, in my view, a putative defendant is actually going to get the best (with an eye toward institutionally important issues) and fairest shake from a politically accountable AG rather than someone who's basically been given a blank check and 'wink wink marching orders' that babble on about phony independence.
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