The Week Ahead
November 20, 2022: Special Counsel Déjà Vu
On Friday, with little fanfare and no advance warning to the White House, Attorney General Merrick Garland announced he’d appointed a special counsel to oversee the Mar-a-Lago investigation and Trump-connected parts of the January 6 investigation. It’s likely to consume a lot of oxygen this week, which makes it an appropriate consideration for tonight’s “week ahead.”
Garland said that he did it because the declaration by Donald Trump that he would run for president again, along with Joe Biden’s intention to run, amounted to extraordinary circumstances that created a conflict of interest. DOJ’s regulations, in Garland’s view (which is the only one that matters for this purpose), required the appointment of a special counsel. Some folks thought this signaled an abdication of responsibility by Garland or a fear of Trump. I disagree.
A lot of legal analysts, me included, originally believed that special counsel Bob Mueller could hold Trump accountable. It didn’t work out that way. So why am I cautiously optimistic that the new special counsel appointed by Garland, Jack Smith, will be able to pull it off?
First off, the legal framing for the two investigations, Mueller’s versus the one Smith is now commencing, is distinctly different in a critical way. Mueller was bound by the Office of Legal Counsel memo that prohibited indicting a sitting president. With Trump out of office, there is no policy like that to prevent Smith from indicting Trump. His consideration will be whether, based upon the admissible evidence, he believes DOJ would likely be able to obtain and sustain a conviction.
The pick was a good one. Smith is convincingly apolitical. When the notion of appointing a special counsel was first floated, my immediate reaction was to wonder how they’d get someone with the right qualifications to agree to accept the position. It seemed inevitable that they’d be promptly swiftboated. Of course Trump will find something to harp on, he’s already whining that it’s all political, but nothing serious has surfaced in the first 48 hours since Smith’s appointment was announced. And you know they’ve been trying.
Smith is highly qualified in a multi-dimensional way. As a prosecutor in the Southern and Eastern Districts of New York, he’s been involved in lots of trials. That work includes making critical decisions about how much evidence is enough, whether a defense could overcome the prosecution’s evidence, and so on. The most important tools of the trade are ones that can only be acquired through hands-on experience in the trenches. Smith also spent time at Main Justice in the Public Integrity Section. Those folks work with U.S. Attorneys’ offices nationwide. Their life’s blood is prosecuting corrupt public officials.
There is also the timeline to consider. Appointing a special counsel could lead to bureaucratic delays—delays in getting an office open and up and running, in hiring staff, and so forth. Smith has made a commitment in that regard, one that Garland echoed in his Friday press conference: there would be no moment of pause in the investigation as Smith onboarded.
This is another place where the new special counsel investigation is different from the one Mueller had to stand up. In Mueller’s case, he was hired just eight days after Trump fired his FBI Director, Jim Comey, after asking for his loyalty and being rejected. Mueller had to start a new investigation and hire prosecutors and agents while opening his office. Smith inherits investigations that have been ongoing for at least a year, with a dedicated team of prosecutors and agents he can shift over. And he will be able to call on the advice of respected professionals in DOJ’s National Security Division, who, while not permitted to make day-to-day supervisory decisions, will be able to supplement the team’s experience in national security matters.
Smith has committed to hit the ground running at a sprint, and he has the capacity to act quickly. Garland commented that he was “confident that this appointment will not slow the completion of these investigations” when he made his announcement. This is something I’ll be watching carefully in the early days as Smith’s office gets to work. It won’t be the first time Smith joins an ongoing trial team—he did that with the Kosovo war crimes tribunal in the Hague, where he has worked most recently, coming on board a couple of years into the investigation and before any charges had been filed. There are now over 100 charges.
Smith’s full complement of skills made him a good choice for the position, rounded out by time spent in the Nashville U.S. Attorney’s office as the first assistant, the office’s number two official and as the acting U.S. Attorney—in the early months of the Trump administration. If you’re the Attorney General, you want a special counsel who is both able and willing to bring charges where appropriate, and has the judgment to decline to bring them if they are not. Smith is poised to continue the forward momentum that these investigations, in particular the Mar-a-Lago one, seem to have recently acquired, without shifting to neutral while he gets up to speed. He has the capabilities, and the Attorney General has committed that he will have the resources he needs. Now it will be up to Smith to prove that he can get it done.
Appointing a special counsel doesn’t mean that the Attorney General is recused. He will still have the ultimate authority for deciding whether to prosecute Trump or not. If Smith resolves to indict, he must share that decision with Garland, who could interfere if he believed it was not warranted, although he would have to share that move with Congress. So Garland is not separating himself from the ultimate responsibility for these matters by appointing a special counsel. Instead, he’s interposing someone who is not a political appointee in the Biden administration between himself and the day-to-day supervisory decisions that must be made in an investigation, things like what leads to pursue and what witnesses to summon to grand jury. While nothing will persuade Trump and his people that the investigation is meritorious and being conducted appropriately, appointing a special counsel means that career people will do their work and report to someone who is not a political appointee. It’s both productive for the investigation and the right thing to do.
Of course, there are still legitimate concerns, even if you accept, as I do, Smith’s good faith and commitment to reaching the right result. For one thing, the clock is ticking. If Smith does indict, the federal district judge who draws the case will have the final say in just how quickly the case goes to trial. A lot will depend on that judge’s conduct of the case.
There are also legitimate concerns about whether there is time for an appeal to conclude if in the 2024 election, God forbid, Trump regains the presidency. A criminal conviction is not technically final until the appeal is over, and as we’ve seen in Steve Bannon’s case, some judges permit a defendant to remain free on bond while an appeal is pending. Beyond that, what damage could Trump convince a hand-picked Attorney General to do to a pending trial or conviction? We know he convinced Bill Barr to dismiss the Mike Flynn prosecution after Flynn pleaded guilty in open court, twice. Then, Barr undercut the trial team’s sentencing recommendation in the Roger Stone case, leading the entire team to step down from the prosecution. Trump ultimately pardoned Stone. And you’ll remember that whole controversy over whether Trump could “self-pardon,” the result of which was, whether it would be legal or not, what’s to stop him if he’s in office?
So yes, even if the special counsel brings prompt prosecutions, there are still some issues. But one thing Democratic success in the midterms established is the potential for the youth vote to drive national outcomes. In an environment where Trump is seeking re-election and would have the ability to override the criminal justice system by regaining office, they would be a key part of the massive mobilization of voters to hold him accountable, as in 2020. The two most recent elections leave us with a sense that voters, American citizens acting in a concerted fashion, may be the institution in our society most capable of holding a twice-impeached, unfit, criminal former president accountable. That’s why we’re going to have to continue to work hard to protect the right to vote.
But I have confidence Smith can make progress, and perhaps even survive a change in administrations if it comes to that, with the protection being appointed special counsel brings and the knowledge that an attorney general can only countermand his decisions on the condition that they make disclosure to Congress. Smith will move ahead with his two investigations. While Jan. 6 is a complicated one, Mar-a-Lago seems further ahead and straight(er) forward. For instance, in the fall of 2021, Trump told some of his advisers he would give back some of the boxes of materials he’d taken to the National Archives if NARA would release documents regarding the FBI’s investigation into ties between Russia and his 2016 campaign. That’s not the action of an innocent man. It demonstrates that Trump knew he had government materials he wasn’t entitled to possess and nonetheless tried to use them to leverage a deal instead of returning them, as though our national security was just another gambit to him. It’s the kind of reckless behavior that convinces prosecutors an individual merits indictment because of their utter disregard for the boundaries of the law.
Garland likely didn’t appoint a special counsel just to zero out the investigation. There would be no need to do that, no appearance of a conflict if Garland declined to prosecute. While a preliminary decision regarding whether and who to indict now rests in the hands of special counsel Smith, it seems as unlikely that he left his position in the Hague to slow-walk this investigation to death as it does that former SDNY prosecutors who’ve recently joined the Mar-a-Lago team left their tidy lives behind to decline to prosecute the former president if there was a case to be made. The signs are, DOJ is building a trial team, which means Garland believes there is likely sufficient evidence to merit prosecuting Trump. He would want to make sure that if that’s the case, his Justice Department does the right thing and does it in the right way. If that’s what it means to be an institutionalist, I’m all for it.
We’ll continue to see debate in the week ahead over whether Garland had to appoint a special counsel and whether he chose the right person; whether the investigations will be delayed, perhaps fatally, and so forth. But I confess to cautious optimism and a belief that we should watch what happens in the month ahead, the time between Thanksgiving and the end of the year, when DOJ employees typically have leave they must take or lose, and progress can slow. A sprint during this time period, which we might see in the form of witnesses summoned to the grand jury or additional search warrants being executed, would be telling.
The bottom line is this: Trump is upset about the special counsel appointment. Sunday evening, he claimed, laughably and without any evidence to support it, that Smith was under Barack Obama’s control. If Trump is this upset about the special counsel appointment, Merrick Garland must be doing something right.
Tuesday will bring the 11th Circuit’s expedited oral argument in the Mar-a-Lago case. You should be able to listen in at the link found on this page. (Scroll down to “special hearings” and click on the live stream link at 2:00 pm ET on Tuesday).
Finally, I can’t end tonight without mentioning the horrific shooting in Colorado Springs and the hate and violence that the LGBTQ community continues to endure. President Biden’s comments in support of the community felt healing. It’s good to have a real president in tough times. But so many people are struggling right now, and it’s far from over. My love and support to all of you.
We’re in this together,