Attorney General Merrick Garland would be making a mistake by appointing a special counsel in response to Trump declaring his candidacy for 2024.
Such a decision would hand Trump control over orchestrating further delays of any criminal investigation and potential criminal prosecution.
It may even factor into Trump’s decision about whether and when to run since he knows it would look more political to prosecute a candidate which would lead him to declare sooner rather than later given the growing scrutiny by DOJ into both Trump’s role in the Jan. 6 attack on the Capitol as well as the Mar-a-Lago documents. But those aren’t even the worst reasons it would be a mistake.
There are many reasons the appointment of a special counsel now would be a mistake. For starters, it would inevitably cause delay in the process. An office of special counsel requires hiring and staffing that takes time and the selection of who to be the special counsel in of itself is a process that takes precious time away from focusing on the multiple investigations involving Trump. Such time would be wasted because no matter how much prudence Garland put into the selection that person would immediately be demonized by the right as being a political hack.
Nor is the use of a special counsel called for in these circumstances because there is no inherent conflict of interest with the DOJ investigating a former president the way there would be with investigating a sitting president.
In the past, special counsels or independent counsels were appointed when the DOJ might have to investigate members of a president’s inner circle or Cabinet. For example, the Reagan-era Iran/Contra matter involved the investigation, prosecution and convictions of Reagan’s defense secretary as well as his national security adviser—none of the convictions stood as they were all either overturned on appeal or the subject of presidential pardons.
Similarly, Robert Mueller was appropriately appointed to head the Russia probe because Trump was president during that investigation. But Trump is no longer president, so his criminal investigation and prosecution does not pose the conundrum of having the executive branch police itself.
Even though there is no conflict of interest, it’s understandable that Garland and top DOJ officials have considered using the federal law authorizing the appointment of a special counsel because the law also contemplates investigations or prosecutions involving “extraordinary circumstances” where “it would be in the public interest to appoint an outside special counsel.”
Obviously, the unprecedented investigation and prosecution of a former president does present “extraordinary circumstances” but the time to appoint a special counsel would have been much earlier, not anywhere near the midterm elections and especially not in response to Trump potentially declaring another run at the presidency. That’s because the timing of such a decision would make it an overtly political act—just the kind of politicization of the DOJ that Garland has sought to avoid.
There is no question that Garland has sought to de-politicize and rehabilitate the DOJ’s image after Barr turned it into a political weapon for Trump.
Garland renewed DOJ’s commitment to the Hatch Act by banning all political activity by DOJ political appointees even on election day, reminded all DOJ employees of tight controls on their interactions with members of Congress and famously promised to apply the rule of law “without fear or favor.” But all that effort may be undermined if he reacts to Trump declaring himself a candidate for president by appointing a special counsel to take over the Trump investigations.
Why? Because reacting to a political announcement is a political act. The best way for any prosecutor to be non-political is by investigating and prosecuting crime without reference to the timing of elections or who is running in those elections. Garland and the officials at DOJ are more than capable of investigating and prosecuting Donald Trump “without fear or favor.” Now they just have to do it.