Mr. Smith Goes to Washington

Attorney General Merrick Garland’s decision, announced this afternoon, to appoint a special counsel to take over two investigations involving former President Donald Trump must have been a painful one for the attorney general.

It means that someone other than the attorney general himself will ultimately decide the disposition of the Trump investigations. It means that someone other than Garland will review whatever prosecution memoranda the teams on the Mar-a-Lago and Jan. 6 investigations produce. And it means that these decisions will be made outside of a Justice Department hierarchy whose processes and prestige Garland has devoted so much energy to reinvigorating.

Garland has insisted to date that the Justice Department can handle these matters with integrity through its regular processes. And at his announcement speech today, Garland made clear that what had changed was not his confidence in the department’s fairness or integrity, or his own ability impartially to supervise the investigation. What had changed, rather, was Trump’s status with respect to the administration.

“Based on recent developments, including the former president’s announcement that he is a candidate for president in the next election, and the sitting president’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,” Garland said. 

The use of the phrase “recent developments” (note that “developments” is in the plural form) suggests that Trump’s presidential announcement may not have been the only factor. But Trump’s Nov. 15 announcement that he would be seeking the presidency again clearly was the dominant factor. It’s one thing for the Justice Department to investigate a former president who did run against the incumbent president. It’s quite another thing for the Justice Department to prosecute a man who is actively running against the incumbent president and would, if elected, fire the attorney general. 

Under 28 C.F.R. § 600.1, the attorney general is required to appoint a special counsel under two separate situations in which a “criminal investigation of a person or matter is warranted.” In the first circumstance, there must be a “conflict of interest for the Department.” In the second, some “other extraordinary circumstances” must exist to require the appointment of a special counsel. Under either circumstance, the attorney general must also consider whether “it would be in the public interest to appoint” one.

Trump’s announcement arguably triggered the “conflict of interest” language of the regulation: How is it not a conflict of interest to investigate or prosecute a man who is running for office and would fire you if elected? 

But Garland made clear that this was not the basis for his decision. “The Department of Justice has long recognized that in certain extraordinary cases it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution,” he said, a clear reference to the language of the second prong. Relatedly, Garland reinforced the public interest basis for his action…

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