Legal experts urge Merrick Garland to appoint a special counsel to investigate Trump and Jan. 6

More than 16 months after being voted out of office, former President Donald Trump continues to be the subject of a variety of investigations — from New York State Attorney General Letitia James to Fulton County, Georgia DA Fani Willis to House Speaker Nancy Pelosi’s select committee on the January 6, 2021 insurrection. And legal experts Laurence Tribe and Dennis Aftergut have a suggestion for another probe: a special counsel to investigate the former president’s January 6-related activities.

Tribe and Aftergut, in an op-ed published by the Washington Post on March 9, argue that the committee has given the U.S. Department of Justice plenty of Trump-related material to work with.

“The time has come for Attorney General Merrick Garland to appoint a special counsel to investigate Donald Trump,” Tribe and Aftergut write. “That step offers the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges. Several recent developments have brought us to this moment. On March 2, the House select committee investigating the Capitol siege alleged, in a federal court filing, that it had amassed evidence that Trump illegally schemed to stop the lawful transfer of power to Joe Biden.”

The attorneys continue, “The next day, we learned that Oath Keepers member Joshua James was cooperating with prosecutors as part of a guilty plea for obstructing an official proceeding of Congress and for seditious conspiracy culminating in the January 6 attack. And last month, a federal district court ruled that two Capitol police officers and 11 members of Congress had alleged facts in a civil suit against Trump that, if proven, would support holding him civilly liable for inciting the January 6 siege.”

Tribe and Aftergut both have many years of legal experience. The 80-year-old Tribe, a Harvard Law School professor and expert on constitutional law, co-founded the American Constitution Society — while the 74-year-old Aftergut is a former federal prosecutor. And they have specific recommendations for the type of special counsel they believe Garland should choose for a Trump/January 6 investigation.

“The Justice Department’s special counsel regulations…. give the attorney general authority to appoint an esteemed lawyer to investigate a matter involving ‘extraordinary circumstances’ under which it is ‘in the public interest to appoint an outside Special Counsel to assume responsibility for the matter,’” Tribe and Aftergut explain. “The Justice Department adopted the current regulations in 1999, in the wake of the Whitewater investigation into then-President Bill Clinton and after the independent counsel statute had expired. The regulations state that only ‘a lawyer with a reputation for integrity and impartial decision-making, and with appropriate experience’ may be appointed.”

The attorneys recommend someone along the lines of the late Watergate special prosecutor Leon Jaworski.

“Garland should name a strong attorney of unassailable experience and impeccable reputation, modeling Leon Jaworski, who was appointed in 1973 to investigate Watergate after President Richard Nixon fired independent prosecutor Archibald Cox,” Tribe and Aftergut note. “The regulations are designed, as a Congressional Research Service report explained, to strike a balance between ‘the competing goals of independence and accountability’…. On the accountability side, the special counsel is subject to all Justice Department rules, which expressly require all attorneys, including any special counsel, to follow department guidelines about when to bring prosecutions and notify the attorney general of ‘major developments in significant investigations and litigation,’ such as the filing of criminal charges.”

Tribe and Aftergut wrap up their op-ed by stressing that a special counsel investigating Trump and January 6 would be chosen by Garland, not President Joe Biden.

“Some may say that this is too important to give to anyone other than the attorney general,” the legal experts write. “But even those with faith in Garland’s independence from President Biden must recognize the inevitable charges of partisanship if an official appointed directly by the president investigates and decides whether to prosecute a former and potentially future rival of Biden’s for the presidency. A special counsel is warranted. Indeed, it is imperative.”