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Opinion Garland’s special counsels: The mistake keeps getting worse

Attorney General Merrick Garland, flanked by government officials, speaks during a news conference at the Justice Department on Oct. 24, 2022, in D.C. (Ricky Carioti/The Washington Post)
4 min

Attorney General Merrick Garland came into the job determined, above all else, to restore the integrity of the Justice Department. In trying to convince everyone that the department is above reproach, however, he has made a series of unwise, showy moves that leave it looking more, not less, political.

The problem began with Garland’s decision to follow his predecessor’s position that former president Donald Trump was acting in the scope of his presidential duties when he allegedly slandered E. Jean Carroll. Garland compounded the error by appointing a special counsel to investigate President Biden’s possession of classified documents from his years as vice president and U.S. senator.

Garland evidently felt that fairness demanded he treat the Biden case as he treated the investigation of classified documents held by Trump at Mar-a-Lago. The department’s credibility would have been better served if Garland had made tough distinctions between two very different cases.

The special counsel statute lays out three criteria for an appointment. First, the attorney general must determine that “a criminal investigation” is warranted. Second, that the investigation or resulting prosecution present a conflict of interest for the Justice Department, “or other extraordinary circumstances.” And third, that “under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.”

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Not on the list: “I want to avoid looking political.” If every sniff of wrongdoing by a high-ranking official or presidential candidate triggers a special counsel, the result will be precisely the chaos that now appears before us. Garland’s failure to make a clear, obvious distinction between Trump’s apparent obstruction and Biden’s mere sloppiness has created a slippery slope. Will former president Jimmy Carter’s sloppiness merit a special counsel? What about former vice president — and likely presidential candidate— Mike Pence?

When Pence found classified papers at his Indiana home, his lawyers contacted the National Archives, much as Biden’s did. Pence allowed the FBI to come to his home to pick up the documents; Biden went further and invited the FBI to search his home. Pence, like Biden, pledged full cooperation.

Yet, despite the lack of evidence of willful wrongdoing, both men might end up as targets of special counsels. Garland has put himself in the position of requiring a special counsel for Pence should he also formally declare his candidacy for president.

One wonders whether Garland and his aides did any significant research to determine how widespread the problem of retained-and-voluntarily-returned documents actually is.

What if former secretary of state Mike Pompeo, who is clearly considering a presidential run, finds and returns classified materials? Or former national security adviser John Bolton? It’s likely that lawyers for any number of ambitious former public servants are combing files.

We might soon realize that Biden’s sloppiness is neither “criminal” nor “extraordinary,” and therefore the special counsel statute does not apply.

Improperly retained documents might present political problems for would-be candidates. They might be evidence of a rather cavalier approach to classified material, in which aides pack up their bosses’ files, rather than giving the National Archives and Records Administration the necessary resources to do the job properly. They might suggest that government over-classifies documents.

None of these is a criminal matter warranting a special counsel.

Garland’s failure to draw a clear distinction between Biden and Trump has utterly confused the public. Polling from ABC News-Ipsos shows that in considering Biden’s and Trump’s conduct, “nearly a third of the public (30%) finds the actions of both to be equally serious.” That’s no doubt the result of appointing a special counsel for both, treating entirely different circumstances identically.

Naming a special counsel for officials for whom there is no evidence of criminal intent smears the innocent and gives the potential guilty the excuse that “everyone does it.”

And Garland’s efforts to look fair will likely backfire when the investigation of Biden finds nothing, while the investigation of Trump leads to an indictment.