There are a number of intriguing aspects to Biden Attorney General Merrick Garland’s selection of seasoned prosecutor Jack Smith as special counsel to oversee the Trump investigations – and we must say “investigations,” plural, because there are multiple (as I’ve outlined here).
First, there is the appearance of independence. By appointing Garland, Garland hopes to convince the public that the Biden administration has severed ties with investigations of President Biden’s most prominent political foe. We are to believe that Smith, and not Garland and the Justice Department, is at the controls.
It is untrue. Criminal investigation and prosecution are exclusive executive powers under the Constitution, and Article II vests all executive power in the president. Whether they are special counsels or assistant US attorneys, all federal prosecutors with investigating and charging authority report to the attorney general and, eventually, the president.
In addition, despite the fact that federal regulations provide a special counsel the appearance of independence from DOJ’s ordinary chain of command, they make it obvious that the Attorney General remains in charge. Garland will report to Smith. Garland also reports to Vice President Biden.
I am not accusing Biden of misconduct by stating this. I am simply asserting ruthless facts — the kind that are indifferent to appearances. As president, you may flee, but you cannot hide. Biden has two options: he can either prohibit the investigation of Trump or he can authorize prosecutors to probe Trump. Both options carry possible political implications, but he cannot avoid making a decision.
The most intriguing feature of the appointment of the special counsel is its extremely unique circumstances. Typically, in this type of political environment, a special counsel is appointed because it would appear otherwise that the incumbent administration (Democratic in this case) was persecuting a political opponent (Republican in this case) to prevent the latter from running for office. Despite this virtually incomprehensible circumstance, Democrats want Trump to run.
Democrats estimate (right, in my opinion) that Trump cannot win a national election, but that he could win the Republican nomination. As Trump’s problems escalate, I believe it will become increasingly apparent that he will not be the eventual Republican nominee. Nonetheless, his prominence as a former president and his bull-in-a-china-shop presence in the campaign primary are likely to harm other GOP contenders, who would otherwise have a strong chance of defeating Biden in November 2024.
Trump will assert that the special counsel has been appointed because Biden is aware that Trump is the frontrunner and must attempt to eliminate him from the election. Don’t trust it. Biden believes that Trump, who is extremely unpopular outside of his limited political base, may be the only prominent Republican he can defeat.
As long as he remains a viable Republican candidate, Democrats desire Trump to remain in the race. However, they wish for him to be weakened by mounting scandals and then charged as soon as he is no longer politically viable. Now, Smith is responsible for injuring and prosecuting.
The special counsel – the latest incarnation of what was known as a “special prosecutor” during the Watergate scandal and a “independent counsel” during the Bill Clinton administration – is arguably the most poisonous of government institutions.
A special counsel, unlike all other prosecutors, is not required to make reasonable decisions regarding how much of his office’s resources can be devoted to one case at the detriment of others. A special counsel’s only duty is to investigate a single subject (or set of targets). Almost limitless resources devoted to the investigation of a single case. Special prosecutors are incentivized to discover anything – or anyone – to indict in order to justify the cost of their investigations.
Historically, this has meant that special counsels take a long time and conduct what is rightly termed a probe — a highly intrusive investigation that examines every aspect of the target’s life. And this occurs even when the target is only examining a single study. Again, Trump faces multiple investigations: the January 6 case, the Mar-a-Lago documents case, and newly emerging investigations into whether the former president attempted to use the IRS against political opponents and whether federal securities laws were violated by the proposed merger that he hopes will capitalize his new media venture – Trump Media, the host of Trump Social, a Twitter clone that Trump has made his primary communications platform.
And as far as we know, there may be more investigations. Trump exhibits erratic behavior and a history of behavior that borders on obstruction (see, e.g., the retention of highly classified intelligence at Mar-a-Lago and subsequent efforts to conceal the breadth of it). This is just the start.
The Smith investigation will take months, if not longer, and put Donald Trump through a number of ringers. Democrats would not want anything different.