In 1999, the Justice Department issued regulations empowering an attorney general to appoint an outside special counsel when “[h]e or she determines that criminal investigation … is warranted” and that handling the matter as DOJ would typically “present[s] a conflict of interest for [DOJ].”
One recent special counsel — former FBI Director Robert Mueller, a man of absolute integrity — was assigned to investigate Russian interference in the 2016 presidential election. He was asked to serve in this role because DOJ (rightly) concluded that it had a conflict of interest overseeing an investigation that touched on the conduct of then-President Trump and other senior government officials.
Prior to 1999, a statute authorized the appointment of an independent counsel when conflicts precluded DOJ from working on a matter. An independent counsel (think Ken Starr and Whitewater), by design, had more autonomy than a special counsel. But when independent counsels seemingly strayed too far from their original remit (think Ken Starr and Whitewater), Congress let the independent counsel law expire, and DOJ replaced it with the current special counsel system.
Unlike an independent counsel who is, well, independent, a special counsel reports to the attorney general and is bound — as Mueller was — by DOJ rules, regulations and policies. If the lapsed independent counsel statute permitted someone to stray too far, the special counsel regulation may have kept them too close. So, do we need a special counsel to oversee an investigation of Trump, as he makes another bid for the White House while under extraordinary legal scrutiny?
This two-decade-old special counsel structure solved one problem (too much autonomy) and arguably replaced it with another problem (too little autonomy). Put another way, does DOJ have a conflict that precludes it from handling its probes within normal channels? I think the answers are “no and no.”
First, this investigation was opened — and is being worked — in standard Justice Department fashion. Garland has made few public comments about the case, but he did say in March that the work of DOJ “will continue to build until we hold everyone accountable who committed criminal acts with respect to Jan. 6.” Handing it off to a special counsel now seems unlikely to eliminate any perceived conflict — already incurred — from the investigation. And, it might have the unintended effect of slowing it down, even if only temporarily.
Second, President Joe Biden has insisted — as all functional adult presidents before him — that there be a strict wall between the White House and DOJ on the latter’s criminal investigative and prosecutive work. That wall is appropriate and necessary, and it seems not to have been breached in this administration, including in DOJ’s investigation of the president’s son, Hunter Biden.
If DOJ develops reliable evidence that Hunter Biden committed a crime, then he should be charged with that crime. DOJ can credibly do that work without resorting to a special counsel, and it can similarly continue to investigate Trump. Remember, this is also the same Justice Department that recently announced it would not prosecute Trump’s lawyer, Rudy Giuliani, for purportedly violating the Foreign Agents Registration Act. This Justice Department makes principled determinations every day. There is no reason to think it cannot do so here, free of political interference.
Third, Trump is (quite obviously) no longer president, even if he is now a candidate for that office. The Justice Department’s policy to avoid election year interference is inapplicable at this point. We are not “near” the time of an election, and the investigation is not for the “purpose” of interfering in that election. And, to the extent that Trump is using his candidacy to stymie the DOJ investigation and to shield himself from legal accountability, Garland cannot let that influence his decision. Subjects of criminal investigations — such as Trump — do not get to make investigative or prosecutive decisions for DOJ.
Fourth, the special counsel regulations — and former Attorney General William Barr’s misleading public summary of the Mueller report — demonstrate that a special counsel may not have enough actual independence to give an attorney general the separation they may want. It is not clear that Garland would purchase much distance between himself and a special counsel, because Garland would still oversee the work and remain responsible for any final determination. Stated another way, Garland would be attacked and blamed — by one side or the other, or both — for any decision that came from a special counsel’s investigation.
Fifth, Garland should retain full responsibility for investigations into Trump — without appointing a special counsel — because he is, like Mueller, a deeply principled, honorable and thoughtful man. I trust his stewardship of DOJ and his judgment in this matter. And I trust the collective judgment of career investigators and prosecutors. DOJ enjoys the biggest and best collection of legal and investigative talent on the planet, with tons of big case experience. It seems odd to take a difficult case out of their capable hands at this juncture. Indeed, DOJ has already been working on the Jan. 6 investigation for almost two years.
Further, in 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?”
I envy Garland neither his job nor his decision, but it is clear we are best served without a special counsel. It is the right move for the Justice Department and for the pursuit of justice.