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Attorney General Merrick Garland announced last week the appointment of a special counsel to oversee ongoing investigations into former President Donald Trump.
Jack Smith, a career prosecutor with a history of investigating elected officials, will take over a pair of Justice Department probes into Trump’s potential crimes: One centers on the former president’s handling of classified materials after leaving office; the other relates to the assault on the Capitol on Jan. 6 by a mob of Trump supporters.
Special counsels operate outside the typical structure of the Justice Department, and are given more leeway about how they conduct their investigations than the typical prosecutor. Ultimately, though, Smith will still answer to the attorney general.
In a press conference announcing his decision, Garland said a special counsel is often necessary in “extraordinary cases” in order to protect the “independence and accountability” of the Justice Department. He specifically cited Trump formally launching his presidential campaign earlier this month, which put the Justice Department in the unprecedented position of investigating the sitting president’s potential opponent in the 2024 election.
Why there’s debate
News of the special counsel appointment sparked strong reactions from across the political spectrum.
The most vocal response came from Trump and his allies, who lambasted the investigations as a political “witch hunt.” But the decision also prompted strong criticism from many on the left, who believe having a special counsel is unnecessary and potentially harmful to the chances of holding Trump accountable for his actions.
These left-leaning critics argue that Garland is being naive if he believes that bringing in an outside investigator will do anything to temper the intense partisan tensions that surround the inquiries. To some, the appointment is reminiscent of the cautious approach of former special counsel Robert Mueller, who ended his two-year investigation into the 2016 Trump campaign’s connections to Russia and potential obstruction of justice without making a clear judgment of whether the then sitting president should be charged. There are also concerns that adding a special counsel will slow progress on the investigations, creating the possibility any future indictments may not be resolved before the 2024 election is decided.
But Garland’s defenders say he made the right choice, arguing that it’s critical for the integrity of the ultimate outcome that there be as much distance as possible between President Biden and the people leading the investigation. Others make the case that Smith’s appointment is a clear sign that the Justice Department believes it has enough evidence to charge Trump — otherwise it wouldn’t make any sense to make such a significant change this deep into the process.
In addition to the continuing investigations by the Department of Justice, Trump faces legal jeopardy in several other ongoing cases, including inquiries into possible fraud committed by his organization and a criminal probe of his efforts to overturn Georgia’s results in the 2020 election.
Biden will ultimately have to play a hand in what happens to Trump
“Being president means you can run but you can’t hide. Biden has two choices: he can order that Trump not be investigated, or he can empower prosecutors to investigate Trump. Either choice carries potential political costs, but he can’t escape the need to make the choice.” — Andrew C. McCarthy, New York Post
Special counsel investigations are prone to overreach and abuse
“The default position … should be against special counsels except in truly extraordinary circumstances, because special counsels by their very nature tend to become at least as abusive as the investigatory ills against which they purport to guard.” — Quin Hillyer, Washington Examiner
Nothing will stop Trump and his allies from attacking the investigations
“No one in the Trump universe is going to believe that any decision to prosecute Mr. Trump would be truly independent of the Attorney General who works for President Biden. That’s plain reality.” — Editorial, Wall Street Journal
Adding a special counsel could cost time the DOJ can’t afford to burn
“The last special counsel investigation of Trump lasted nearly two years, from appointment to an official report. And we still have not seen Mueller’s full report. … Two years is a very long time. In November 2024, we will have a president-elect, maybe Trump himself, who, once in office, could toss this investigation into the dustbin just as House Republicans will do with the January 6 Committee the first moment they can.” — Jennifer Taub, Washington Monthly
Garland is using far too much caution in what should be a straightforward prosecution
“The ‘circumstances’ are simply not that ‘extraordinary’ here. The guy is a private citizen suspected of a crime. That's all he is, no more and no less. There's nothing magical about declaring yourself a candidate for president. You are not then blessed with the magic oil of immunity. That's not a ‘Get Out of Jail Free’ Card.” — Charles P. Pierce, Esquire
The old rules of political independence no longer apply after the Trump era
“Appointing a special counsel to reassure the public of nonpartisanship would be laudable at other times. In late 2022 America, given the need to achieve accountability for a lawless former president, that time is gone. Indeed, appointing a special counsel triggered by the former president’s announcement of his 2024 candidacy would itself appear to put politics over principle.” — Dennis Aftergut and Laurence H. Tribe, Slate
The administration is too conflicted to handle the investigations on its own
“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.” — Ruth Marcus, Washington Post
Having a special counsel makes it harder for Republicans in Congress to interfere
“When the new Congress convenes in January, the House Republican caucus will be in the majority. They have stated with unambiguous relish that they intend to investigate Attorney General Merrick Garland and the Department of Justice (DOJ) for all manner of perceived sins. … The appointment provides Garland with a succinct response to his House interrogators. Even if the move is tactical on some level, naming Smith as a special counsel is, on balance, a good decision.” — Michael McAuliffe, South Florida Sun Sentinel
There should be as much distance as possible between Biden and the investigation
“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.” — Kimberly Wehle, The Bulwark
Smith has a chance to make up for Mueller’s mistakes
“Smith should thus receive less resistance to his work at DOJ than Mueller did. … Let’s hope the scrappy Smith is better prepared for a street fight.” — Barbara McQuade, MSNBC
Smith’s appointment makes it more likely that Trump will eventually be charged
“The job of a career prosecutor like Smith is to make cases. And just like there would be no reason to appoint a special counsel to wind down an investigation, there is no reason for Smith to accept the job unless he intends to try to make one or more chargeable cases.” — Jennifer Rodgers, CNN
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