'Voluntary but compulsory': Why Merrick Garland hired a special counsel to handle Donald Trump

28 November 2022

Donald Trump is the first ex-president in U.S. history to announce another presidential run when he was facing two major investigations by the U.S. Department of Justice (DOJ): one pertaining to the January 6, 2021 attack on the U.S. Capitol Building, the other pertaining to government documents stored at Mar-a-Lago. Trump announced his 2024 presidential run on November 15, and only three days later, on November 18, U.S. Attorney General Merrick Garland announced that he was appointing a special counsel, Jack Smith, to conduct DOJ’s two Trump-related investigations.

Legal experts have been stressing that in both cases, Smith already has enough evidence for an indictment. Regardless, Smith is obviously determined to proceed with caution, not unlike Garland. The word “institutionalist” has often been used to describe Garland, and it easily applies to Smith as well — which is why Garland chose him. In the past, Smith was an assistant U.S. attorney and headed DOJ’s Public Integrity Section.

But the fact that Garland decided to hire a special counsel for DOJ’s two Trump-related investigations, according to New York Times reporter Glenn Thrush, doesn’t mean that he was crazy about the idea. Rather, Garland saw it as a necessary move in order to counter claims from MAGA Republicans that the DOJ investigations are politically motivated. Garland, a centrist Democrat, was appointed to head the DOJ by another centrist Democrat: President Joe Biden, who may be running against Trump in the 2024 presidential election if Biden runs and they receive their parties’ nominations.

“Attorney General Merrick B. Garland, a stoic former federal judge intent on restoring rule-of-law order at the Justice Department, gradually came to accept that he would need to appoint a special counsel to investigate Donald J. Trump if the former president ran for the White House again,” Thrush reports in an article published by the Times on November 28. “But that did not mean he liked doing it. Mr. Garland made it clear from the start that he was not inclined to tap outsiders to run investigations and indicated that the Department was perfectly capable of functioning as an impartial arbiter in the two criminal inquiries involving Mr. Trump, according to several people familiar with the situation.”

Thrush continues, “But the appointment of a special counsel, Jack Smith, on November 18, and a painstakingly planned rollout of the announcement, signaled a significant, if subtle, shift in that approach. Mr. Garland has shown a growing willingness to operate outside his comfort zone — within the confines of the rule book — in response to the extraordinary circumstance he now finds himself in: investigating Mr. Trump, a top contender for the 2024 nomination of a party that is increasingly rallying around the charge that Mr. Garland has weaponized the Justice Department against Republicans.”

Garland, according to legal experts, finds himself in a difficult position. On one hand, Trump and his MAGA allies are claiming that the two DOJ investigations are politically motivated “witch hunts.” On the other hand, Trump’s critics would accuse Garland of sending out a dangerous message if the investigations were discontinued — a message that former presidents are above the law.

Daniel C. Richman, a former federal prosecutor who is now a law professor at Columbia University in New York City, told the Times, “There is a political dimension that can’t be ignored — this is an investigation that is being used by the target and his allies as a mobilization moment in a political campaign. That’s why you are seeing the Department leaning forward in making these moves, and getting as much detailed information about an ongoing investigation out there as it can.”

Garland, Thrush notes, has “cast the appointment of Mr. Smith as voluntary, but compulsory, dictated by the section of the law that allows an attorney general to install a special counsel under ‘extraordinary circumstances.’”

“Mr. Garland appears to view Mr. Smith as more of an internal decision maker than a public buffer,” Thrush reports. “The attorney general intends to follow the letter of the statute, and will most likely accept Mr. Smith’s findings unless his conclusions are ‘inappropriate or unwarranted' under the Department’s precedents, a person familiar with his thinking said.”

David H. Laufman, who once headed the DOJ’s counterintelligence unit, told the Times that an obstruction of justice indictment “looks more and more to be the most compelling charge for the government to bring” in the January 6 case. And an Espionage Act charge, according to Thrush, is a possibility in the Mar-a-Lago/government documents case.

“Department officials emphasized that Mr. Smith would not start from scratch but would bring existing investigations to their conclusion and develop potential links between the two lines of inquiry,” Thrush reports. “The documents case appears to be proceeding more quickly than the January 6 investigation. Public filings and interactions between law enforcement officials and defense lawyers indicate that a lot of work remains, and law enforcement officials with knowledge of the investigation emphasized that the Department was unlikely to sign off on charges unless it was convinced that it would prevail in court. Evidence made public points to a case based on a section of the Espionage Act, which makes it a crime to mishandle closely held national defense information — and a potential obstruction of justice charge stemming from the former president’s refusal to comply with the subpoena in May.”

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