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Opinion The new Trump probe special counsel should move quickly

U.S. Attorney General Merrick Garland on Friday walks out to announce the appointment of a special counsel at the Justice Department in Washington. (Evelyn Hockstein/Reuters)
correction

An earlier version of this editorial referred to Kenneth Starr as a special counsel. He was an independent counsel, operating under a now-expired law that gave him greater autonomy than a special counsel.

Attorney General Merrick Garland on Friday named a special counsel to oversee the criminal investigation into former president Donald Trump’s possible mishandling of classified documents at his Mar-a-Lago club, as well as aspects of the investigation into the Jan. 6, 2021, U.S. Capitol insurrection. Mr. Garland explained that Mr. Trump’s now-official presidential campaign presented “extraordinary circumstances” for which the Justice Department’s regulations prescribe the appointment of a special counsel. In other words, he had no choice but to proceed.

So be it. But this means that there is more work ahead for the attorney general. Appointing a special counsel carries risks, not least the possibility that the investigation could drag out or lose focus, potentially letting Mr. Trump off the hook. It will take tremendous focus to prevent that from happening.

Mr. Garland’s decision to appoint longtime federal prosecutor Jack Smith to lead this politically fraught probe comes as Republicans have attacked it as corrupt, arguing that an attorney general appointed by President Biden cannot be trusted to make a fair call on investigating Mr. Trump. These attacks have always been unfair. The Biden administration has studiously respected the Justice Department’s independence. By contrast, Mr. Trump flouted time after time the norms of separation between the White House and law enforcement, even pressuring then-FBI Director James B. Comey to pledge his loyalty.

Though it is unrealistic to think that Mr. Garland’s move will ever quiet the right-wing conspiracy mill, that’s not where the biggest dangers lie. The first danger is mission creep. Special counsels have tended to allow their probes to get out of control, spending vast amounts of time and public resources on minor legal issues. Such investigations often leave the unhappy impression that they must find something. Combined with a lack of supervision, special counsel probes are prone to overreach.

The second is politics. Unless Mr. Smith acts with dispatch, this case could run up against the 2024 election — or even outlast it. If Mr. Trump returned to the White House, Justice Department rules on prosecuting sitting presidents could enable Mr. Trump to duck whatever accountability he might deserve.

Responsibility for avoiding these pitfalls still falls to Mr. Garland, whose judgment in one of the most potentially explosive investigations in Justice Department history will continue to be tested. Mr. Smith will be in charge of the probe’s day-to-day activities, but the attorney general still oversees the special counsel’s work, accepting or rejecting any recommendations. Mr. Garland should guide the investigation so that it is fair, focused and, within reason, fast. Accountability should remain the priority — delivered, as he has taken pains to ensure, according to the rule of law.

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Editorials represent the views of The Washington Post as an institution, as determined through debate among members of the Editorial Board, based in the Opinions section and separate from the newsroom.

Members of the Editorial Board and areas of focus: Editorial Page Editor David Shipley, Deputy Editorial Page Editor Karen Tumulty; Associate Opinion Editor Stephen Stromberg (elections, the White House, Congress, legal affairs, energy, the environment, health care); Jonathan Capehart (national politics); Lee Hockstader (immigration; issues affecting Virginia and Maryland); David E. Hoffman (global public health); Charles Lane (foreign affairs, national security, international economics); Heather Long (economics); Associate Editor Ruth Marcus; and Molly Roberts (technology and society).

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