Garland appoints a special counsel, but can't hide behind him

Merrick Garland has appointed a special counsel to investigate former president Donald Trump. The appointment was prompted by Trump’s announcement that he’s running for president.

Garland explained that, given Trump’s candidacy and Joe Biden’s stated intention to run for reelection, it is “in the public interest” to appoint someone independent of the Biden Justice Department to handle the investigation of Trump. Doing so, he said, will “underscore the Department’s commitment to both independence and accountability in particularly sensitive matters.”

This makes sense until you think about it. Once you do, it becomes clear that appointing a special counsel doesn’t solve the problem posed by the possible prosecution of Trump by a government headed by his political enemy.

The Attorney General has the power to reject a decision by a special counsel to prosecute. In the end, therefore, it’s Garland’s decision whether the government will bring a case against Trump.

Moreover, that decision rests, or should, on considerations beyond those a special counsel is equipped to make. To see why, let’s consider the two areas the special counsel will be investigating.

One of them is Trump’s removal of documents to Mar-a-Lago. The special counsel is well equipped to determine the facts concerning the removal and the law that pertains to it.

I have no doubt that the special counsel will find that by taking documents to Mar-a-Lago, Trump violated one or more federal criminal statutes. Frankly, I have little doubt that this finding will be correct.

But unless the special counsel plausibly finds that Trump’s violation truly harmed our national security, this should not end the inquiry. Rather, the next question is, or should be, whether to prosecute a former president and current candidate for the presidency for mere technical or process violations.

The argument in favor of doing so is that no one is above the law. The argument against it is that such a prosecution would pose a threat to our political system (“our democracy,” if you will).

It would set a precedent for persecuting former presidents and key rivals of current ones. Although we may never again see a president like Donald Trump, we are certain to see other presidents who commit technical violations of the law, or worse, or who can be found to have done so by clever partisan prosecutors.

Is prosecuting technical violations by Trump worth this risk? That’s not a judgment a special counsel is well equipped to make. Nor, because Garland has the final say, is it the special counsel’s call. Thus, the conflict of interest (in effect) that formed the basis for Garland’s decision to appoint a special counsel is not resolved by the appointment.

The same is true of the second area of investigation — January 6 — although the analysis is a little different.

It would not be a mere technical or process violation for a president to call for the storming of the Capitol. However strong the presumption may be against prosecuting a former president and current candidate for the presidency, it would be overcome, in my view, if that president/candidate told supporters forcibly to enter the Capitol to prevent the certification of election results.

But from all that appears, Trump never told anyone to do this. He may (or may not) have signaled in some way that he wanted this to happen, but that’s not the same thing — and it’s very much a matter of interpretation.

It’s true that the storming wouldn’t have taken place if Trump hadn’t (1) contested his electoral defeat, (2) called supporters to D.C., (3) given a fiery speech, and (4) encouraged his supporters to march “peacefully and patriotically” to the Capitol.

But Trump had a right to do all of these things. In my view, by January 6, 2021 it was highly irresponsible for him to do any of them. But highly irresponsible conduct is not, in itself, a crime.

I don’t deny that a clever special counsel can weave together a statutory violation by Trump from his behavior on and around January 6. In that event, however, Garland will be in a similar place to where he’ll likely end up on the Mar-a-Lago documents issue. He will have to decide whether a former president and current presidential candidate should be criminally prosecuted based on facts that can be interpreted as either demonstrating or negating criminality.

As with the Mara-a-Lago documents, resolution of that question will, or should, take into account the potential harm to our political system of such a prosecution. Again, this sort of balancing is not something a special counsel should perform.

It seems to me that Garland has already preempted such balancing. In announcing the appointment of a special counsel, he spoke of the need “to make [prosecutorial] decisions indisputably guided only by the facts and the law.”

For Garland, then, it’s apparently out-of-bounds to consider the potential harm of prosecuting a former president or a current presidential candidate. But making that decision at the front end of the investigation doesn’t insulate Garland from complaints that he made it out of political animus towards Trump and/or a desire to help his boss, who’s likely to run for reelection.

Appointing a special counsel may insulate his findings of fact and law from claims of partisanship — or at least reduce the force of such claims. In the case of the Mar-a-Lago documents, however, the facts and the law are clear enough, I think. In the case of January 6, the facts and the law are also clear, although there is more room for interpretation.

Garland’s problem is that even when the facts and law are clear, prosecutors have considerable discretion. That discretion ultimately lies with Garland. He can’t hide really hide from exercising it, or refusing to .