Nov.22

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Special Counsel Decision Is Getting Mixed Reviews

When news broke this weekend that AG Merrick Garland had decided to appoint a special counsel, we were a tad underwhelmed. On the other hand, a number of readers wrote in and gave the thumbs up to the move.

The opinion pieces published thus far reflect this divide. Here are few folks who think Garland did the wrong thing:

• Jennifer Rodgers, CNN: When the issue of appointing a special counsel first arose, I was not in favor. I felt that a special counsel would delay things, and that there would be only a minimal, if any, benefit from the perception of independence from the DOJ that a special counsel brings. My feeling was that the costs in terms of delay were not outweighed by any benefit the appointment would bring in terms of the limited independence and resulting perception of fairness a special counsel brings to the table. I continue to think that the appointment was not legally necessary.
  
  
• Jeremy Stahl, Slate: Why is a special counsel appointment so good for Trump? The move could add months and possibly years of delay to a grand jury inquiry that experts say already produced more than enough evidence to indict him. The Trump indictment could be delayed to the point that he's able to mount a political comeback and hold off justice permanently by again claiming power, or Trump could merely receive a pardon by a different Republican president in 2025. If that happens, Garland's decision could prove largely to blame.
  
  
• Chuck Rosenberg, Politico: [I]n this highly contentious climate, could any appointed special counsel convince partisans that an investigation of Trump—perhaps the most polarizing figure in American history—is independent and unbiased? What, exactly, would DOJ gain in perception by handing the case off to someone else? If Trump and his cronies attacked the esteemed Bob Mueller—and they did—who as special counsel could possibly convince them that Trump was not being "persecuted?"

So, the general idea is that Garland sacrificed precious time in favor of a limited upside.

And now, some folks who think Garland did the right thing:

• Jennifer Rubin, The Washington Post: Ironically, Trump was betting that his announcement would somehow protect him from prosecution. Instead, it prompted Garland to take an additional step to diminish the argument that the investigations against him are politically motivated. That, of course, will not matter to Trump and his MAGA cultists, but it might provide a measure of reassurance to ordinary Americans that the Justice Department has gone the extra step to prevent the appearance of a political vendetta.
  
  
• Ruth Marcus, The Washington Post: 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... logic suggests that the arrival of a hard-charging prosecutor is an ominous sign for Trump: [Jack] Smith didn't leave his job as a war crimes prosecutor in The Hague to preside over a non-case.
  
  
• Kimberly Wehle, The Bulwark: Although it is impossible to remove all hints of bias or conflict, or to depoliticize what will likely be a messy process if Trump is indicted, Smith's appointment takes President Biden and the office of the presidency as far out of the loop of a Trump prosecution as the law allows. For Garland, it's the office that counts. He was right to do so.

So, the general idea is that Garland ultimately gave up very little in order to make the investigation as fair as is possible, to send a message to those Americans whose minds weren't already made up a long time ago.

The one thing everyone agrees on is that the clock is ticking. If Smith is to have any hope of wrapping up a court case before the 2024 cycle really gets going, he's going to have to file charges in the first quarter of 2023. (Z)