New Trump Special Counsel Appointed… but why?...
The “New Mueller,” or an Attorney General punting?
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Attorney General Garland just appointed a special counsel to oversee the open criminal probes involving Donald Trump.
Add this news to a long list of historical “worsts” for Trump — the only President to twice get fewer votes than his opponents; to be impeached twice; to have more aides indicted in his first term than any other President; or to have his property searched for stolen government documents.
It’s definitely “not good” to be implicated in activities that merit open criminal probes after leaving the White House, let alone two, as Garland has now named one prosecutor to oversee both the insurrection and document probes.
This was not some scheduled or telegraphed development. The news upended Washington on Friday — I fielded calls about the news as we scrambled plans for that night’s program; and talked to the DOJ about their explanation for the move.
So what does it all mean?
Valid, but unnecessary
Garland’s action creates an investigative lane for the DOJ that is legally valid. He has this power. (There is no evidence Garland “overstepped” his authority or the rules.)
At the same time, the move to appoint a special counsel is not required under the DOJ rules.
So while the action is valid — not some “reach” or violation — it may practically complicate things more than it clarifies them.
“Special counsel” sounds like a big deal, or at least special. It certainly felt that way when Bob Mueller was appointed — but that’s because he got independence in a case where the DOJ’s leadership faced credible questions about whether they would strongly probe their own boss. In this case, with probes that have been open for some time, Garland’s action basically adds a layer.
Consider if the current line prosecutors conclude there is evidence for indictments (of high level Trump allies or Trump himself). Before Friday, they'd take that case to Garland.
Now, they’d take it to this special counsel. If he agrees, then it still goes to Garland for the final call.
So nothing about this structure makes an indictment more or less likely.
As for Garland, at his Friday announcement, he insisted he views this step as required under the rules:
In certain extraordinary cases, it is in the public interest to appoint a special prosecutor. // Based on .. [Trump’s] announcement that he is a candidate .. and [Biden’s] intention to be a candidate .. it is in the public interest to appoint a special counsel.
Garland says the candidacies of these people — his boss and a subject in the probe, who may end up running against each other again — form the extraordinary circumstance. Like a trigger requiring this step.
Okay. That’s a valid view, and there’s no public evidence to impugn Garland’s approach, or professional integrity.
That doesn’t mean, however, that he is automatically correct. Lawyers can spend months parsing whether something is “extraordinary” or not. (Some make lots of money doing it.)
History shows the DOJ often probes candidates and politicians without appointing a special counsel. So it seems more ordinary than extraordinary.
That was the case with Rod Blagojevich, convicted for trying to literally “sell” Barack Obama’s old Senate seat. (Talk about audacity.) Same for Bob Menendez, indicted and not convicted on corruption allegations. He remains in the Senate today.
Both cases involved candidates and intrigue, neither used a special counsel.
Punt, Pass or Boomerang?
So what happens now?
The DOJ continues these probes, with that extra layer.
We may hear more about how no one is “above the law,” including former President and now-candidate Trump. It’s what we’ve hard from leaders of the Jan. 6 Committee (“We can't allow people to decide that they are above the law,” Jamie Raskin, “Excuse by excuse, we are putting Donald Trump above the law,” Liz Cheney) and Garland himself (“No person is above the law in this country — I can't say it any more clearly than that.”)
If there ultimately is evidence teeing up the unprecedented and “hard” decision — whether to indict Trump as he runs for President again — this special counsel won’t really make the call. He will present it to Garland, who then makes the call. The buck stops with him. If people conceive of this move as a delay or “punt,” in or outside DOJ, it also has the prospect of being a boomerang. Because any hard call would come back to the Attorney General.
If both probes and the special counsel land on the alternative conclusion — no big charges or charges for Trump — then that is present to Garland and it would be unusual for him to reach “past” their conclusions to try to reverse that outcome. So the framework is to end with a whimper, or with the same call facing Garland.
P.S. Do you think Garland made strong points explaining his decision? Tell me in the comments and I will respond to some of you per usual.
The Jan. 6 Report is coming out soon, you can order The Harper Collins edition Jan. 6 Report with my foreword on the coup conspiracy here, and it will come to you as soon as the Report is published:
A Postscript on Special Counsel Regulations
Now you have the gist of my views on this new special counsel.
If a headline about regulations piqued your interest and you’re still reading, however, then here is a little bit more about this news, going into the weeds…
While this special counsel appointment does not mean Trump is more likely to be indicted, it does add some autonomy to both probes. This is mostly about process, not the final indictments.
The DOJ rules state that unlike all other DOJ officials, a Special Counsel is "not subject to the day-to-day supervision of any official of the Department." Any official includes the Attorney General, so a Special Counsel can move independently and possibly make more aggressive moves on searches or interviews than a more supervised prosecutor might. (They still must be legal, of course.)
If the Special Counsel does have a dispute over such moves, or planned indictments, with the Attorney General, then Garland has the final word but the dispute will be shared with Congress and thus become public.
Here’s how that reads in the rules:
"The Attorney General may reject an investigative or prosecutorial step that is so.. unwarranted under established Departmental practices that it should not be pursued…"If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress."
So unlike other prosecutors or high-ranking DOJ officials, only a special counsel has that “leverage” in clashes over legal strategy. So a “losing position” will go to Congress, and the public.
In theory, that can strengthen a prosecutor’s hand in certain clashes with the A.G. The legal concept is about transparency — imagine a prosecutor finds it necessary to search, say, the DNC in a probe for some reason, and that is where a Democratic-appointed A.G. draws the line. The A.G. is on notice that decision will become public, which is designed to dissuade the A.G. from deciding that issue corruptly, as they will end up being held accountable in public.
As a “guardrail,” this rule is not often triggered. It never happened in the Mueller probe, for example. That does not mean it has no impact – it may be the mere prospect of the publicity makes an A.G. more deferential to a special counsel’s decisions, which is the point.
There’s not much evidence that this rule will have much impact in this probe, which is why this point is buried here at the bottom of the newsletter… for the hardcore readers. If you got here, that’s you! Appreciate your interest.
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Hi Ari. Thanks for such a detailed explanation of yesterday's announcement by the DOJ. Was a bit confused as to why the need for a special counsel. After your show yesterday I had a better understanding. Then reading today's newsletter, you laid out all the possible scenarios. You expertise on the law is invaluable to your audience. My question is, can this special counsel be fired by a new President if that happens?
Have a good weekend, take.care be safe!!!!🙏✌️😊
It never hurts to get another perspective on a case as potentially huge as this one. If Jack Smith has the huevos to handle The Hague, he can handle whatever Trumpty and his minions throw out there…which undoubtedly will be plenty.
I don’t think hiring a special counsel is an insignificant thing and Merrick Garland doesn’t strike me as a shrinking violet when it comes to justice and the law. Deliberate, detail oriented, able to hit any legal curve ball…absolutely.
I think Trumpty is in a world of hurt.