From the start, Merrick Garland’s tenure as attorney general has been defined by dual missions: managing the largest U.S. criminal investigation following the deadly Capitol attack while restoring the independence of a Justice Department badly compromised by Donald Trump’s White House.
The two daunting tasks converged in sharp relief Friday when Garland appointed a special counsel, longtime federal prosecutor Jack Smith, to oversee multi-faceted criminal investigations that now imperil former president.
Garland’s action, triggered in part by Trump’s new presidential bid announced three days earlier, represents a reckoning with a political reality that has shadowed Justice’s inquiries into Trump’s conduct.
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“This is Merrick Garland being scrupulously adherent to the law,” said Harry Litman, a former deputy assistant attorney general during the Clinton administration. “It doesn’t surprise me that at the end of the day, even if it was a close call, he would bend over backwards toward impartiality.”
Regulations guiding the appointment of special counsels require extraordinary circumstances in matters of significant public interest, both thresholds that Garland believed had been crossed.
“I strongly believe that the normal processes of this department can handle all investigations with integrity,” Garland said. “And I also believe that appointing a special counsel at this time is the right thing to do. The extraordinary circumstances presented here demand it.”
Garland’s announcement, while focused on the selection of the special prosecutor, also appeared to contain the suggestion that the ongoing inquiries – examinations into “whether any person or entity unlawfully interfered with the transfer of power” and the mishandling handling of government documents recovered at Trump’s Mar-a-Lago, Florida estate – had reached inflection points of their own.
Laurence Tribe, a professor emeritus at Harvard Law School who has previously urged the Justice Department to move more aggressively against Trump, said the attorney general’s rare description of the election interference inquiry Friday clearly seemed to put the former president and his allies on notice.
“I think we’re going to see a thermonuclear set of indictments early in the next year,” Tribe said.
Even William Barr, the attorney general’s predecessor who broke with Trump for pressing Justice to pursue baseless allegations of voter fraud, believes prosecutors have likely gathered enough evidence to charge his former boss.
“Given what’s gone on, I think they probably have the evidence that would check the box,” Barr said in a Friday interview with PBS. “They have the case… I think Merrick Garland is going to have to make that call.”
‘Hitting the ground running’
Unlike special counsels before him, notably Robert Mueller who headed the investigation into Russia’s interference in the 2016 election, Smith is set to take on a much different job.
Both investigations that Smith will oversee are well underway. A former chief of the Justice Department’s Public Integrity Section from 2010 to 2015, Smith more recently served as war crimes prosecutor at the International Criminal Court in The Hague, Netherlands.
Witnesses, including former top Trump White House attorneys, have been called to testify before a grand jury investigating election interference and a flurry of subpoenas already have been served. The investigation into the former president’s retention of government records broke into public view with the dramatic August search of Trump’s Florida home, which resulted in the seizure of more than 100 documents bearing classified markings.
“Most every other special counsel appointment has come at the beginning of an investigation,” said Litman. “In the documents investigation, he’s coming into a case that might be 90% investigated.”
Smith also won’t have to navigate the roadblock that Mueller ultimately encountered: a Justice Department policy preventing the indictment of a sitting president.
Mueller cited the policy at the end of his tenure, saying that charging Trump was “not an option.”
But that isn’t a concern now. “Nobody takes the position that you can’t indict a former president,” Litman said.
While some legal analysts have argued that a special counsel appointment coming in mid-stream would slow prosecutors, Tribe, one of Garland’s former law professors, said Smith’s selection could actually have the opposite effect.
“He seems to have taken the position that he will be hitting the ground running,” Tribe said, referring to Smith’s Friday statement that “the pace of the investigations will not pause or flag under my watch.”
Tribe said by joining an existing team of investigators, there is no immediate need to organize a staff and chart a path forward.
“There will be a need to get up to speed, but I think the idea is that he moves right in,” Tribe said.
A possible additional benefit, Tribe said, is that a special counsel can make crucial decisions that, under normal circumstances, would have to be considered at higher levels of the Justice Department.
“But the clock is ticking; there is no time to waste,” the professor said.
No shield from criticism
While Smith’s appointment will likely help insulate the Justice Department from some potential conflicts of interest, it will not be a shield from political criticism.
A new Republican majority in the House has vowed to turn up the heat on the Garland Justice Department and the FBI.
Trump, meanwhile, already has launched his own assault.
The former president has called on Republican allies to resist what he characterized as another “political” attack.
“I have been going through this for six years – for six years I have been going through this, and I am not going to go through it anymore,” Trump told Fox News Friday. “And I hope the Republicans have the courage to fight this.
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“It is not acceptable. It is so unfair. It is so political.”