Attorney General Merrick Garland lived up to his reputation for caution on Friday, when he decided to appoint a special counsel to take over two ongoing investigations of former president Donald Trump. Those inquiries will now be led by Jack Smith, a prosecutor who has worked on public integrity cases and currently serves as a war crimes prosecutor at the International Criminal Court in the Hague.
By all appearances, Smith is well qualified for what is undoubtedly the most delicate prosecution the Justice Department has undertaken in generations. And while Garland was not strictly obligated to appoint a special counsel — indeed, there has been a lively dispute in legal circles about whether it would be wise to do so — it was the safest call.
Trump is the subject of at least two federal probes, one into his possible role fomenting the Jan. 6, 2021, attack on the Capitol, and the other for allegedly mishandling classified documents after he left the White House. Both investigations, which up until now have been handled by regular career prosecutors in the Justice Department, could potentially result in charges for serious crimes.
Investigating, and ultimately deciding whether to charge, a former president was already a hugely thorny task. And then Trump made it thornier still by announcing that he would run for president again in 2024. That means that the Justice Department, headed by an appointee of President Biden, would be investigating — and possibly prosecuting — a potential opponent if Biden also runs again.
By appointing a special counsel, Garland has handed the investigations off to an official with a much greater degree of independence, who is not a political appointee of the president (and who is a registered independent with no known political leanings). Not only does the move protect the integrity of the investigation now, it means that if the inquiries stretch out beyond 2024, the next president — potentially Trump himself — would have a harder time ending it.
The argument against appointing a special prosecutor was twofold: first, that it would lead to delays in the cases, and second, that it would not stop Trump from attacking the investigations as politically motivated.
Seemingly in response to concerns about possible delays, Smith released a statement Friday that said the investigations would not “pause or flag” and that he would “move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
Of course, Trump will attack the investigation anyway; a spokesman already blasted Friday’s announcement as “a totally expected political stunt by a feckless, politicized, weaponized Biden Department of Justice.” His most zealous followers already believed that the investigations were politically motivated. And it is true that, special counsel or not, the ultimate decision of whether to file charges against Trump will be Garland’s.
Nonetheless, appearances matter, and so does precedent. Even if appointing Smith doesn’t change any minds about the Trump prosecutors’ independence, it sends the message that the Justice Department is scrupulous about avoiding conflicts of interest, real or perceived. And it lays down a norm that future attorneys general — say, an attorney general in a second Trump administration — would have to reckon with if they investigate a future president’s political opponents.
The reality is that Garland is in uncharted waters, making decisions on issues that no attorney general has faced before. No former president has come under such serious criminal investigation. Nobody in this much legal trouble has ever been a major-party presidential candidate. But the answer cannot be that any former president, or any presidential candidate, is above the law. The rule of law and credibility of the Justice Department is being tested in these unprecedented investigations, but Garland’s choice on Friday should give the public greater confidence in whatever the outcome may be.
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