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Appointing a New Special Counsel Was the Right Call

Merrick Garland didn’t run away from a tough decision—he made one.
November 21, 2022
Appointing a New Special Counsel Was the Right Call
U.S. Attorney General Merrick Garland delivers remarks alongside Deputy Attorney General Lisa O. Monaco and Assistant Attorney General Kenneth Polite at the U.S. Justice Department on November 18, 2022 in Washington, DC. Garland announced he will appoint a special counsel to oversee the Justice Department’s investigation into former President Donald Trump and his handling of classified documents and actions before the January 6th attack on the U.S. Capitol Building. Garland's pick to oversee the special counsel is Jack Smith, an international criminal court prosecutor. (Photo by Anna Moneymaker/Getty Images)

Attorney General Merrick Garland is under fire for taking the extraordinary step of appointing a special counsel to investigate what he called “certain extraordinary cases” involving potential criminal actions by former President Donald Trump and his cadre of enablers. The probe is twofold, involving (1) the unlawful interference with the transfer of power and certification of the Electoral College votes on Jan. 6, 2021; and (2) the taking of classified documents and other presidential records to Mar-a-Lago and possible obstruction of the related investigation. Garland made clear that the criminal investigations and prosecutions of 900+ people based on their “physical presence” at the Capitol will remain with the U.S. Attorney’s Office in Washington, D.C.

Translation: Special Counsel Jack Smith is tasked exclusively with deciding whether to go after the big fish.

On Face the Nation yesterday, former Deputy Attorney General Rod Rosenstein made news by suggesting to anchor Margaret Brennan that “I probably would not have” appointed a special counsel if he were in Garland’s shoes because “the department had been handling this itself for two years.” Even so, Rosenstein took pains to emphasize that “it’s easy to second-guess from outside the department,” and that Garland said “he thought it was the right thing to do”—just as Rosenstein had believed “it was the right thing to do” when he himself had appointed Robert Mueller as special counsel to investigate Russian interference in the 2016 election.

And as with the Mueller investigation, America is in uncharted territory again for one reason: Trump keeps stress-testing the guardrails of U.S. democracy. He did it by communicating, through his campaign, with Vladimir Putin’s government in the lead-up to 2016. He did it by taking eleven separate actions that Mueller identified as evidence of possible obstruction of justice when he was president. He did it by withholding congressionally appropriated aid from Ukrainian President Volodymyr Zelensky pending an announcement of an investigation into his rival for the presidency, Joe Biden, in 2019. He did it in 2020 and 2021 through a multitiered effort to thwart the election results and the peaceful transition of presidential power. And he did it by illegally taking presidential records from the White House—some of them top secret—and refusing to give them back for eighteen months upon leaving office.

Rosenstein added that when DOJ brings cases “in which they use novel theories,” the results may not uphold on appeal, suggesting that Garland needs to be sure that any indictment will be “sustained” by a higher court. No doubt that is the gold standard. The trouble is that there’s no precedent to fall back on for predictions. There has never been a time in American history when the federal criminal justice apparatus was tasked with investigating likely crimes by a former president who already announced his candidacy, in the sarcastic words of the New York Post, “with just 720 days to go before the next election.”

Bear in mind that Garland’s credentials include twenty-four years as a judge on the U.S. Court of Appeals for the D.C. Circuit, seven as its chief. The D.C. Circuit functions at a hair’s breadth from the U.S. Supreme Court because most agencies of the federal government are housed in Washington, D.C. What that means is that people who want to sue the federal government usually file their lawsuits in D.C.; appeals go the D.C. Circuit. Because the Supreme Court only agrees to hear a handful of matters each year, the D.C. Circuit functions as a last resort on countless cases of federal and constitutional significance, rendering its judges veritable experts on, among other things, the constitutional separation of powers. (Justices Ketanji Brown Jackson, Brett Kavanaugh, Ruth Bader Ginsberg, and Antonin Scalia all hailed from that court.)

Undoubtedly, it’s the separation of powers that drove Garland’s decision to appoint Jack Smith as special counsel. Article II of the Constitution lodges the power to appoint cabinet-level officials in the president with the advice and consent of the Senate. Although the Constitution says nothing about removal of officials, the Court has long construed the power to remove as necessary to effectuate the appointment power. The theory is commonsensical: How can the head of a huge executive apparatus, with whom the buck stops under the Constitution, do his job if he can’t fire bad actors? Because Biden can fire Garland at any moment, Garland is ultimately beholden to Biden for his job.

Imagine, then, that Biden is on the competing ticket with Trump for the presidency in 2024 or, at a minimum, that another Democrat gets the nomination with Biden, while still in office, as the ostensible head of the party. At any moment, Garland could get a phone call from Biden nudging Garland on whether to prosecute or not, to call a witness or not, to pull back on the effort or to push harder. Garland would be in the awkward position of either going along with what his boss wants or resigning in protest. Either way, the integrity of the investigation—and DOJ itself—would be damaged. Some might blithely assume that Joe Biden, like most presidents before him (save Trump and Richard Nixon), would never put his attorney general in such a position, but that’s not the point. The point is structural: Without barriers in place to keep Biden’s hands clean, the temptation exists.

Recognizing this problem in the wake of Watergate, Congress passed the Ethics in Government Act of 1978. That law lodged the power to appoint what was called an “independent counsel” in a three-judge panel and made it impossible for the attorney general to fire that person except “for cause” and with an accompanying report to the House and Senate Judiciary Committees. Rod Rosenstein (along with myself, Kavanaugh, and many others) worked under Independent Counsel Kenneth W. Starr to investigate former President Bill Clinton’s pre-presidency activity pursuant to such a statutory appointment. In Morrison v. Olson, Chief Justice William Rehnquist wrote an opinion upholding the constitutionality of the legislation on the rationale that “the congressional determination to limit the Attorney General’s removal power was essential, in Congress’ view, to establish the necessary independence of the office.”

Once that law expired in 1999, DOJ passed its own internal regulations (which can be modified by the attorney general, without Congress’s buy-in, at any time) to replace the statutory scheme. The new rules refer to a “special counsel” rather than an independent counsel, and the choice of who fills that role belongs to the attorney general, not a panel of judges. But once a special counsel is appointed, he cannot be removed except “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” And contrary to some popular belief, the special counsel is not subject to Garland’s supervision. Here’s the relevant language:

The Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress.

Translated, if Garland is interested in knowing what Special Counsel Jack Smith is up to, he can ask. If he decides on his own—or worse, at the president’s insistence—that Smith is taking a step too far, he can put a stop to any “investigative or prosecutorial step.” But if he does that, he has to notify Congress—and thereby the American people.

Although it is impossible to remove all hints of bias or conflict, or to depoliticize what will likely be a messy process if Trump is indicted, Smith’s appointment takes President Biden and the office of the presidency as far out of the loop of a Trump prosecution as the law allows. For Garland, it’s the office that counts. He was right to do so.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.