Unequal Justice

If you’re feeling a bit of deja vu all over again (apologies to Yogi Berra) after Attorney General Merrick Garland’s appointment of a new special counsel to investigate Donald Trump, join the club. 

In 2017, former FBI Director Robert Mueller was appointed as a Justice Department special counsel to investigate Trump in connection with Russian meddling in the 2016 election. After two years of dogged probing accompanied by breathless media hype, Mueller produced a 448-page report that essentially cleared Trump of conspiring with the Russians, but laid the groundwork for prosecuting him on multiple charges of obstruction of justice. The report, however, was subsequently dismissed by then-Attorney General Bill Barr, and Mueller stumbled badly in his testimony before the House in July 2019. Mueller has since receded into private life and relative obscurity.  

This isn’t to say that the new special counsel—longtime prosecutor Jack Smith—will meet the same fate. Unlike the seventy-eight-year-old Mueller, who came out of retirement to accept his position, Smith, fifty-two, is at the peak of his legal career. His resume includes stints with both the District Attorney in New York County and the U.S. Attorney’s Office. In 2010, he was put in charge of the Justice Department’s Public Integrity section, a post he held for five years. Since 2018, he has worked with the International Criminal Court at The Hague, investigating war crimes. In short, Smith is eminently qualified. But can he deliver? 

On the plus side, Smith will be unconstrained by Justice Department policy prohibiting the prosecution of sitting presidents. As a former chief executive, Trump is fair legal game.  

Smiths’ appointment order authorizes him to investigate both the January 6 insurrection and the plot to interfere with the lawful transfer of power as well as the removal of government documents to Mar-a-Lago. The order equips Smith with subpoena power to fulfill his mission, and clarifies that he will not take over the prosecution of any individuals who physically stormed the Capitol on January 6, 2021. The Justice Department will continue to furnish line deputies to handle those cases, allowing Smith to focus on Trump and the ex-President’s top advisors and co-conspirators. 

In his November 18 press conference announcing Smith’s appointment, Garland pledged to provide the new special counsel with the resources needed to conduct his work “quickly and completely.” This means that Smith will have his own budget and office space, and that, in contrast to Mueller, he won’t have to build his prosecutorial team from scratch. Justice Department lawyers have been leading federal grand-jury probes of Trump’s role in the insurrection and the Mar-a-Lago documents case for many months, and Smith will be able to bring them on board. Putting the existing Trump investigations under the centralized supervision of a single special counsel should also yield greater efficiency, enabling Smith to hit the ground running.

In making his decision, Garland hewed closely to the text of the Justice Department’s regulations, which direct the Attorney General to name a special counsel in situations that present either a conflict of interest for the department or “other extraordinary circumstances” that require such a move “in the public interest.” Smith’s appointment was in the public interest, Garland said, because of “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.” 

As many commentators have noted, Garland hopes that putting day-to-day operations in the hands of a special counsel will help insulate the department from charges of bias and politicization. Unfortunately, this is where Garland’s reasoning badly goes astray. Political independence and neutrality are lofty ideals for the Justice Department, but Trump and the MAGA movement will never accept Smith’s appointment. 

Within hours of the appointment, House Representative Marjorie Taylor Greene of Georgia took to Twitter to demand Garland’s impeachment. Trump was even more unhinged. In a diatribe broadcast from Mar-a-Lago on November 18, he branded Smith “a super radical left special counsel,” and termed his appointment “appalling” and “a horrendous abuse of power.” Reprising the tenor of his incendiary speech before the January 6 riot at the Capitol, he urged his supporters to resist the special counsel, telling them, “You people have to fight. You have to fight. You have to be strong.” 

Garland has also been criticized by some prominent liberal and progressive observers who think Smith’s appointment will do nothing to insulate the Justice Department from partisan attacks and will, at best, lead to delays in returning an indictment against Trump. The Nation’s Elie Mystal put it this way during an appearance November 18 on MSNBC’s The Beat with Ari Melber: “There is not a single argument that I have heard in defense of Merrick Garland’s self-serving, pearl-clutching conference that he gave this morning that points–that answers the critical question, if he was going to do this, if he believes this is in the public interest, then why didn’t he believe that was in the public interest 18 months ago when he easily could have done the exact same thing?

“If Merrick Garland thinks that kicking this to Jack Smith from The Hague is going to take down the partisan pressure on him and make the right wing feel like this is a fair process, he’s an idiot.”

While I am not prepared to go as far as Mystal (Garland may be spineless but he’s no dummy), it should be emphasized that the final decision on whether to prosecute Trump will rest with the Attorney General. Smith may call for an indictment, but the buck will stop with Garland, just as it did with Bill Barr and Robert Mueller. 

This time, things may be different. Hope, as they say, springs eternal.