Laurence H. Tribe is the Carl M. Loeb University Professor emeritus of constitutional law at Harvard University. Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.
Several recent developments have brought us to this moment. On March 2, the House select committee investigating the Capitol siege alleged in a federal court filing that it had amassed evidence that Trump illegally schemed to stop the lawful transfer of power to Joe Biden.
The next day, we learned that Oath Keepers member Joshua James was cooperating with prosecutors as part of a guilty plea for obstructing an official proceeding of Congress and for seditious conspiracy culminating in the Jan. 6 attack.
And last month, a federal district court ruled that two Capitol police officers and 11 members of Congress had alleged facts in a civil suit against Trump that, if proven, would support holding him civilly liable for inciting the Jan. 6 siege.
These events raise public expectations and heighten the political pressure on the Justice Department. On one side are those counseling Garland to refrain from acting against Trump lest the attorney general be accused of engaging in a partisan vendetta. On the other are those, including us, who believe that Trump’s alleged role in a conspiracy intended to interfere with congressional duty is so unprecedented that ordinarily close legal questions bend in favor of taking action to protect the rule of law.
The Justice Department’s special counsel regulations offer a way to resolve these tensions. They give the attorney general authority to appoint an esteemed lawyer to investigate a matter involving “extraordinary circumstances” under which it is “in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”
The Justice Department adopted the current regulations in 1999, in the wake of the Whitewater investigation into then-President Bill Clinton and after the independent counsel statute had expired.
The regulations state that only “a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience” may be appointed. He or she must “be selected from outside the United States Government.” Appointing such a person would serve the public interest by providing a crucial layer of independence and nonpartisanship in the resulting investigation.
Garland should name a strong attorney of unassailable experience and impeccable reputation, modeling Leon Jaworski, who was appointed in 1973 to investigate Watergate after President Richard Nixon fired independent prosecutor Archibald Cox.
The regulations are designed, as a Congressional Research Service report explained, to strike a balance between “the competing goals of independence and accountability.”
On the matter of independence, the attorney general may reject a special counsel’s proposed recommendations for specific actions only when they are “inappropriate or unwarranted under established Departmental practices” and has to explain that decision to Congress.
Importantly, the president can’t fire a special counsel. The attorney general may take that step, but only for misconduct, conflict of interest or other “good cause.”
On the accountability side, the special counsel is subject to all Justice Department rules, which expressly require all attorneys, including any special counsel, to follow department guidelines about when to bring prosecutions and notify the attorney general of “major developments in significant investigations and litigation,” such as the filing of criminal charges.
Far from implying any expectation about the investigation’s result, appointing a special counsel helps ensure an objective outcome.
Some might object that appointing a special counsel would delay the process. But there are past special counsels who have moved expeditiously, and this one can as well.
Another objection is that a special counsel might range too broadly. The regulations, however, give the attorney general the responsibility to limit a special counsel’s jurisdiction, providing a “specific factual statement of the matter to be investigated.”
Finally, some may say that this is too important to give to anyone other than the attorney general. But even those with faith in Garland’s independence from President Biden must recognize the inevitable charges of partisanship if an official appointed directly by the president investigates and decides whether to prosecute a former and potentially future rival of Biden’s for the presidency.
A special counsel is warranted. Indeed, it is imperative.