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Opinion Merrick Garland was right to appoint a special counsel

Attorney General Merrick Garland announced on Friday that he is appointing a special counsel in the investigation of Donald Trump regarding classified materials found in the former president's possession. (Evelyn Hockstein/Reuters)

Attorney General Merrick Garland announced on Friday that seasoned prosecutor Jack Smith will serve as special counsel overseeing investigations into Donald Trump. That includes all aspects of the investigations into the former president’s hoarding of classified documents at his Mar-a-Lago estate and portions of the Justice Department’s Jan. 6 criminal inquiry having to do with him and senior officials in his administration.

The appointment was necessary, Garland said, given the “extraordinary circumstances” of the investigations. Because Trump has announced he will run for president, and President Biden has said he intends to as well, it was in the “public interest,” the key factor under the special counsel statute, to assign Smith.

Advocates of swift action against Trump no doubt will be alarmed by the announcement, but there is less here than meets the eye. For starters, Smith needs no introduction to the Justice Department. He was appointed first assistant U.S. attorney for the Middle District of Tennessee in February 2015. Before that, he worked as head of the department’s Public Integrity Section and as investigation coordinator in the Office of the Prosecutor at the International Criminal Court. He also worked in the U.S. attorney’s office in the Eastern District of New York.

Most important, the attorney general announced that the career staff who have been working on these cases will continue in their roles. That, Garland suggested, will mean the query will “not slow down.” Smith will make a recommendation to Garland on whether to prosecute Trump. Until then, Garland will have no direct supervision over Smith.

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Did Garland need to wait until Trump’s campaign launch to make the appointment? Perhaps not, but so long as Trump was not an active candidate, there was little reason for Garland to step aside. Now that Trump is a potential opponent to Biden, Garland believes it is essential to add a layer of separation between himself and the line prosecutors.

Constitutional scholar Laurence Tribe tells me, “Looking over Jack Smith’s decades of prosecutorial experience, it’s hard to imagine anyone better prepared to hit the ground running and to sew together whatever loose ends remain as he puts together a comprehensive prosecution of the leaders of the attempted coup, with the former president at its center, as well as a powerful prosecution of the former president for his theft of top secret documents as he absconded to Mar-a-Lago.” He adds that, while he previously “publicly urged that there was no need to appoint a special counsel, my principal concern was the need to avoid delay, and it appears that this appointment will solve that problem.”

Norman Eisen, who served as co-counsel to the House impeachment managers during Trump’s first impeachment, agrees. “I have no concern that a special counsel will shy away from charging, and Jack Smith has outstanding experience,” he tells me. Eisen also thinks the move will not cause much of a delay. He observes: “Mr. Smith should move with alacrity. Here, where any other American who had removed the even one classified document would be subject to likely prosecution, and where the former president took dozens, the rule of law demands fast action.”

Ironically, Trump was betting that his announcement would somehow protect him from prosecution. Instead, it prompted Garland to take an additional step to diminish the argument that the investigations against him are politically motivated. That, of course, will not matter to Trump and his MAGA cultists, but it might provide a measure of reassurance to ordinary Americans that the Justice Department has gone the extra step to prevent the appearance of a political vendetta.

In some sense, this might make prosecution easier insofar as Smith will not let political questions interfere with his work, such as whether it is appropriate to prosecute a former president. Once Smith makes a recommendation, Garland will almost certainly follow it, relying not only on the judgment of career prosecutors who have been working on the case but also relying on Smith’s independent judgment.

In a written statement, Smith said, “I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice. The pace of the investigations will not pause or flag under my watch.” He added, “I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”

That’s as it should be. The department will prosecute Trump if the facts and law support such action. In that singular sense, nothing has changed.