AG Garland's appointment of special counsel delays blame game

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Berl Falbaum

U.S. Attorney General Merrick Garland blinked.

Charged with investigating Donald Trump’s role in the January 6 insurrection and if any crimes were committed by the former president taking top secret papers to Mar-a-Lago, Garland appointed a special counsel to help him.

Garland explained he made the appointment of Jack W. Smith, an experienced prosecutor, because of unique circumstances, i.e., Trump is running for president for a third time and may face President Biden again. Garland said, in making the appointment, that he wanted to avoid any appearance of politics.

“Such an appointment,” added Garland, “underscores the department’s commitment to both independence and accountability in particularly sensitive matters,” 

Reported The New York Times in its news story on the appointment: “Even though Mr. Garland cast his decision as an effort to ensure public faith in the impartiality in the department’s investigations of Mr. Trump, it remains unclear if Mr. Smith’s appointment will influence public perception in a meaningful way.”

Nothing unclear about it. It won’t. Garland’s appointment does absolutely nothing to alter the political equation. 

Smith will investigate and report his findings to Garland. Garland still will have to make the final decision whether to charge Trump with any crimes or not. 

The issue of politics remains intact. The responsibility remains his. All Garland has done is to provide himself with some cover by being able to point to Smith and what he might have found to justify whatever the final decision. Indeed, he gave himself some political breathing room, just the opposite of his stated intention.

(There is a significant difference between a special counsel and an independent counsel like Kenneth Starr, who investigated Clinton scandals in the early 1990s. An independent counsel makes the final decision. He has that power. Smith does not. Ironically, Starr resigned from his post, citing the politicization of the process).

Even worse, Garland does not have to accept Smith’s recommendations; he has that option. Sure, that’s unlikely but what if Garland rejects Smith’s findings? If he does, he has to report the rejection to Congress. Talk about a political firestorm.

By all accounts, Garland is a man of high integrity and honor. The problem: He is overly cautious. He is not a risk taker. But then, he signed up for the job.

He should have proceeded with the investigation under way by his Department of Justice and taken the heat. It is impossible to remove charges of politics from any issue in Washington, especially one so controversial. There is no such thing as an apolitical decision in a super-charged political atmosphere.

The appointment had two other, perhaps unintended, consequences. Garland damaged his credibility by citing the apolitical nature of his decision, and he may have undermined his staff by appointing an outsider to oversee the process. Yes, he made sure to praise his attorneys but that does not mitigate the implication.

What Garland might have argued in appointing Smith that he wanted someone from the outside who has not been involved in the process to examine all the issues. He wanted fresh, new assessment.

Moreover, while Garland maintained that the appointment —- some experts predict that we may not have any results until sometime in 2024.

Politico reported, “Neither man [Garland, Smith] promised to bring the probes to resolution before the 2024 campaign ratchets into high gear…” although the two seemed to signal “an intent to reach some decisions before the cases become further enmeshed in the political debate.” Note the use of “political debate.”

Think about that. It has been almost two years since the attack on the Capitol and we are not even close to bringing this ugly chapter in American history to an end. 

Two years despite the DOJ investigation and all the hearings by the Select Committee on January 6 which, incidentally, still hasn’t made any of its findings public. It has not reached a conclusion and the committee has been at it since June 2021.

With Republicans taking control of the House, we can expect that they will do all they can to squash further work by the committee and bury whatever report may be issued. Sadly, all the hearings, time and money spent will turn out to have been for naught.

I understand the complexity of the legal issues involved. I have heard over and over again that investigators need to dot all the i’s and cross the t’s. But should it really take this long? 

We may be headed for another drawn out anti-climax. What do I mean by “another”? Remember the Mueller Report? You know, the one which investigated Russian interference in the 2016 election. That investigation, after much hoopla and 22 months, came to nothing. 

All that said, Smith is described as a no-nonsense prosecutor, a decision-maker who doesn’t let grass grow under his feet. Let’s hope he lives up to his billing.

We hope that Garland will not be too surprised if, whatever decision he makes, is judged, by some, to be political.

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Berl Falbaum is a veteran political journalist and author of 12 books.


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