In Trump’s case, special counsel Jack Smith will do what the US AG won’t | Opinion

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President Biden is reportedly much annoyed with his U.S. Attorney General, Merrick Garland, for not “doing enough to rein in” special counsel Robert Hur and his meandering report.

The 388-page tome cleared Biden of charges but, oddly, questioned the president’s mental acuity and referred to him as “an elderly man with a poor memory” who could not recall when he finished his vice-presidential term or when his beloved son died. Ouch. Biden angrily told assembled reporters when the document was released: “I know what the hell I’m doing.” That’s never a great look.

Gene Nichol
Gene Nichol

The White House apparently clashed with the Department of Justice before publication. Biden lawyers Ed Siskel and Bob Bauer wrote to Garland on Feb. 7 complaining that the assertions about the president’s capacities “openly, obviously, and blatantly violated department of justice policy and practice.”

Garland, of course, refused to act. You can almost imagine him explaining to the belligerent lawyers: You are asking me to intervene, to do something — but I don’t do things, not doing things is my jam.

Maureen Dowd has argued it was a huge mistake for Garland to make a Trump appointee, like Hur, the special counsel for Biden. “Garland is a man so in love with his own virtue,” Dowd writes, “that he bends over backward to show it off. I am so fair that I am going to be unfair.”

It should come as no surprise that when Garland steps down, whether soon or late, he’ll likely leave the smallest imprint, for good or ill, of any modern American attorney general. Few will remember he was ever there. Spending all one’s effort to try and keep anyone from getting mad at you is no formula for success in 2024. Or ever.

But Garland’s existential reticence has, on occasion, produced benefits. Stepping back from the fray over a year ago, Garland appointed Jack Smith as special counsel to oversee the stumbling Department of Justice investigations of Donald Trump. Garland’s DOJ had seemed adamant to vigorously prosecute every street thug who stormed the Capitol on Jan. 6 without turning its gaze toward the villain who summoned them. But U.S. Rep. Bennie Thompson and Liz Cheney’s remarkable congressional committee’s work rendered the Justice Department’s blind eye an unsustainable embarrassment. And as the depressed accelerator since Smith’s appointment has shown, he’s a serious fellow and a real lawyer.

There’s irony in this. Usually, we think of appointing special counsel in order to avoid the executive branch being too forgiving when investigating its friends and members. With Garland, the Justice Department’s overarching goal has been not to offend its enemies. So, in Trump‘s case, he surely wishes Garland had stayed in the saddle. Then, Trump could have been more readily assured that the horse wouldn’t go anywhere.

Last week, Smith again prodded the U.S. Supreme Court to put an end to Donald Trump’s dishonest, but literally all-encompassing, delay campaign. Smith explained, with his typical candor, that “a president’s alleged criminal scheme to overturn an election...should be the last place to recognize a novel form of absolute immunity from federal criminal law.” Echoing the Court of Appeals’ earlier unanimous decision, Smith added that Trump’s seeks “unbounded authority to commit crimes that would neutralize the most fundamental check on executive power...” and constitute “an unprecedented assault on our structure of government.”

If our hyper-partisan Supreme Court wants to throw in with America’s aspiring tyrant, Smith is going to make them show their stripes, even quickly. Good for him. Garland wouldn’t want to hurt their feelings.

Contributing columnist Gene Nichol is a professor of law at the University of North Carolina-Chapel Hill.