The Justice Department has reportedly been considering the appointment of a Special Counsel to complete investigations of former President Donald Trump and to make a decision about whether to prosecute. But what once may have worked – and indeed, we ourselves proposed a Special Counsel last winter – is no longer a good idea, as one of us (Tribe) tweeted immediately after the idea was floated earlier this month.
The reasons Attorney General Merrick Garland might now be considering such an appointment were described in the New York Times by John P. Fishwick, Jr., a former U.S. Attorney from the Western District of Virginia. He argued that the Department “needs to have a lawyer with Republican pedigree on that team to send the message that this is not a political persecution.”
“[E]very person in the United States will be the jury in this case,” Fishwick said, “and they will need to have confidence that the prosecution team reflects all of them.”
In ordinary times, that rationale might be persuasive. The attorney general has understandable institutional concerns about protecting the Justice Department that he loves from perceptions of its becoming politicized. Indeed, in March, we suggested that appointing a special counsel could help ensure that the nation would accept the result of any prosecution decision.
But the country’s polarization has outrun the concern as has the clock of justice. Now is “no ordinary time,” to borrow the title of Doris Kearns Goodwin’s Pulitzer Prize-winning chronicle of Franklin and Eleanor Roosevelt.
It’s not news that political polarization in the country is extreme. The 41% of the nation, according to 538.com, who view Trump favorably, are not likely to have their judgment affected about the nonpartisan nature of an indictment if it is brought by a special counsel rather than by a DOJ led by Garland. Those Americans are highly susceptible to the MAGA belief-system that seems impervious to facts or to accepting that an attorney general appointed by a president of the other party could administer the law without fear or favor to either side.
True, a special counsel has some independence from the attorney general. DOJ regulations provide that special counsels “shall not be subject to the day-to-day supervision of any official of the Department.” But the attorney general is free to reject special prosecutors’ recommendations, and some of those closest to the Mueller investigation say, without attribution out of loyalty to Mr. Mueller, that their work was in many ways subject to closer day-to-day supervision than that of a federal prosecutor in an ordinary investigation.
In any event, even if a special counsel has greater independence, the buck stops on Garland’s desk. If Trump is charged, the former president and his allies are certain to amplify that fact and inundate MAGA world with the familiar “political witch hunt” meme. Even a Republican special counsel would be tarred as a RINO or worse. The hoped-for benefit would most likely be illusory.
It is true that prosecuting a former president could be said to involve what the regulations call “extraordinary circumstances,” and that, at least as to an incumbent president, Acting Attorney General Rod Rosenstein’s appointment of Robert S. Mueller in May 2017 to investigate Trump could be invoked as precedent. But Garland is too smart to find that parallel persuasive. It obviously involved the inherently conflicted circumstance of a president being investigated and prosecuted by someone who serves at his pleasure, or in effect a president investigating and prosecuting himself. (That’s not even to mention that it occurred in an administration where the unitary executive theory would presumably supplicate the attorney general to the president).
Finally, any decision about whether to appoint a special counsel ultimately rests in an attorney general’s discretion. That means it calls for his reflective judgment about the competing factors in any situation.
In this situation, Garland is bound to recognize that there is a heavy price to be paid in potential delay. It will already be difficult if an indictment and trial are to come, to obtain a final judgment against Trump before January 20, 2025. On that day, a Republican administration could come to power and illegitimately scuttle the case.
Consider the timeline: It took 13 months from indictment to trial of the relatively simple case of insurrectionist Guy Reffitt. For Trump, with his many claims and lawyers’ skill at delay, the time would surely be longer. With Trump obviously not waiting out the trial in a jail cell, he’d have every incentive for delays.
Let’s put aside the highly complex crimes associated with Trump’s role in fomenting the January 6 insurrection and plotting the attempted coup that preceded it. Even for the narrower case involving the willful retention of government documents shipped to Mar-a-Lago, it would take a small miracle for an indictment, even one filed this month, to go to trial before January 2024 and for any ensuing trial to be completed before February.
The median time for appeal in the District of Columbia is 11 months. That would bump an appellate court decision in the case, even on an optimistic schedule, right up against (or past) January 20, 2025.
There is every reason to believe that a special counsel appointment would extend the timeline. A lawyer from outside the Justice Department – as the regulations require – would need to assemble a team, request a budget and learn the case. Even if an indictment is nearly ready, as we suspect, additional months would likely be consumed before any indictment dropped.
The indisputable priority for an attorney general committed to the rule of law must be accountability for a former president who thumbed his nose at it in so many ways. In particular, the United States Code criminalized his removing, concealing and converting for personal use any government documents, much less retaining the nation’s most closely guarded national security secrets and not delivering them to the Archives. Without prosecution for such crimes, the principle that no person is above the law would be irreparably breached.
Appointing a special counsel to reassure the public of nonpartisanship would be laudable at other times. In late 2022 America, given the need to achieve accountability for a lawless former president, that time is gone. Indeed, appointing a special counsel triggered by the former president’s announcement of his 2024 candidacy would itself appear to put politics over principle. The game is not worth the candle or even the wick. Appointing a special counsel now would undermine the rule of law.