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Appointing Special Counsel was the correct decision.
An administration headed by a president who has announced his intention to seek reelection is investigating a former president who just declared he will run again.The United States is not Brazil, and Trump is no Lula, but the dangers are obvious.
Garland’s appointment of a special counsel was cautious. But also bold.
I thought Garland had more leeway to make the judgment call the other way, but in retrospect it seems almost inevitable that the by-the-books attorney general would go the special counsel route. Justice Department regulations provide that the attorney “will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted” and that investigation or prosecution “would present a conflict of interest for the Department or other extraordinary circumstances.”
The regulations offer an out, one I previously wrote that Garland should take: The attorney general doesn’t have to name a special counsel if he decides that would not be in the public interest. But consider: An administration headed by a president who has announced his intention to seek reelection is investigating a former president who just declared he will run again. If this does not constitute an extraordinary circumstance, what would? What lesson would not appointing a special counsel send to future attorneys general? These are serious concerns.
If Garland had a mission on leaving the bench to return to Justice, it was to repair the department’s reputation for independence and integrity, battered after four years of Trump administration meddling, and to reassure its demoralized troops. Naming a special counsel was never going to assuage the concerns of Trump partisans that the Biden administration is out to get him, as the immediate reaction from Trumpworld underscored. Trump denounced the effort to take any whiff of politics out of the decision-making as “the worst politicization of justice in our country.” A Trump campaign spokesperson called the announcement “a totally expected political stunt by a feckless, politicized, weaponized Biden Department of Justice.”
But Garland’s goal was not to persuade the unpersuadable. It was, in the familiar language of the law, aimed at how a reasonable person would perceive the fairness of the investigation, and whether a reasonable person would think a special counsel was warranted under the facts at hand and the language and spirit of the regulations. It was telling that in this regard, Garland did not acknowledge that investigating Trump constituted a conflict of interest for the department — just that the circumstances had become extraordinary.
The regulations offer an out, one I previously wrote that Garland should take: The attorney general doesn’t have to name a special counsel if he decides that would not be in the public interest. But consider: An administration headed by a president who has announced his intention to seek reelection is investigating a former president who just declared he will run again. If this does not constitute an extraordinary circumstance, what would? What lesson would not appointing a special counsel send to future attorneys general? These are serious concerns.
If Garland had a mission on leaving the bench to return to Justice, it was to repair the department’s reputation for independence and integrity, battered after four years of Trump administration meddling, and to reassure its demoralized troops. Naming a special counsel was never going to assuage the concerns of Trump partisans that the Biden administration is out to get him, as the immediate reaction from Trumpworld underscored. Trump denounced the effort to take any whiff of politics out of the decision-making as “the worst politicization of justice in our country.” A Trump campaign spokesperson called the announcement “a totally expected political stunt by a feckless, politicized, weaponized Biden Department of Justice.”
But Garland’s goal was not to persuade the unpersuadable. It was, in the familiar language of the law, aimed at how a reasonable person would perceive the fairness of the investigation, and whether a reasonable person would think a special counsel was warranted under the facts at hand and the language and spirit of the regulations. It was telling that in this regard, Garland did not acknowledge that investigating Trump constituted a conflict of interest for the department — just that the circumstances had become extraordinary.
https://www.washingtonpost.com/opinions/2022/11/19/garland-special-counsel-jack-smith-trump/
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