What is the point of appointing a special counsel to investigate Trump?
Attorney General Merrick Garland tapped special counsel Jack Smith to oversee two ongoing Trump investigations that DOJ could have continued handling itself.
Former Deputy Attorney General Rod Rosenstein told CBS News on Nov. 20th that he "probably" would not have appointed a special counsel to oversee the Justice Department's investigations involving former President Donald Trump. Why? Because the Jan. 6 probe has already been ongoing at main Justice for nearly two years.
Rosenstein has a point: Why this and why now?
My own view is that the decision is mostly about constitutional structure and the separation of powers. Garland understands this because he sat as a judge on the U.S. Court of Appeals for the DC. Circuit for nearly three decades. As I wrote for the Bulwark, it was the right call.
Of course, Rosenstein knows a bit about the special counsel regulations because he used them to appoint Robert Mueller to investigate Russian interference in the 2016 presidential election.
Mueller started mostly from the ground up. Smith will be hitting the ground running with a wealth of evidence already unearthed by DOJ and the Jan. 6 Committee regarding Trump’s efforts to overturn the 2020 election.
And although a Florida judge managed to stymie DOJ’s access to the documents legally taken by the FBI from Mar-a-Lago in August, an appeals court green-lighted release of the classified stuff early on and is poised to give DOJ the rest soon. The investigation of Trump’s unlawful hoarding of classified and other presidential documents has been moving forward for months now.
Smith rapidly took charge.
It’s unlikely a guy with his stellar track record and reputation would leave The Hague and return to Washington, D.C. under the glare of partisan politics only to quietly wrap things up.
But let’s be clear: Some folks in the media are mistakenly saying that Garland retains ultimate decision-making authority over whether or not to indict Trump. That’s not entirely accurate.
Under the regulations, the authority to investigate and prosecute belongs to Smith, who is not subject to Garland’s “day-to-day” supervision. Garland can ask Smith to explain himself regarding “investigative or prosecutorial” steps, and Smith has to notify Garland of “significant events.” If Garland disagrees with a step Smith takes, he can intervene, but he has to notify Congress. And he can’t fire Smith for any reason — he needs “good cause.” Disagreement with a legitimate prosecutorial decision would not qualify.
The very point of the special counsel regulations, which replaced the post-Watergate Ethics in Government Act, is to take complete control away from Garland and, by affiliation, President Joe Biden.
Rosenstein had authority to make the decision to appoint Mueller because then-AG Jeff Sessions had recused himself based on his meeting with the Russian ambassador during the presidential campaign in which Sessions publicly backed Trump. That left Rosenstein with oversight of the Justice Department’s Russia probe.
Here’s the constitutional conflict: Honor the sanctity of the Article II office above all else and sacrifice the rule of law? Or indict a former president with no historical or legal precedent for predicting what may befall the country as a result?
There are no easy answers.
A few months after Rosenstein stepped down from his decades-long career at DOJ, he chatted with me on #SimplePolitics. (We first met while working together on the Whitewater investigation under Independent Counsel Ken Starr). We talked about some of the hard decisions he faced as a top DOJ official in the Trump administration — the kinds of decisions involving investigations of Donald Trump that are in the news again. For good reason.
Take a look and a listen…
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