Jan 13, 2023 - Politics & Policy

The era of special counsels

Merrick Garland

Photo: Olivier Douliery/AFP via Getty Images

Unprecedented in U.S. history: Two special counsels are now investigating two presidents who ran against each other in the last election — with a high likelihood they will do so again in 2024.

Why it matters: Look no further than the last half-decade at the Justice Department for a snapshot of America's polarized politics.

  • 2017: Robert Mueller is appointed by deputy attorney general Rod Rosenstein to investigate the 2016 Trump campaign's ties to Russia.
  • 2020: John Durham is appointed by Attorney General Bill Barr to "investigate the investigators" for possible abuses during the Russia probe.
  • 2022: Jack Smith is appointed by Attorney General Merrick Garland to investigate Trump's handling of classified documents and efforts to overturn the 2020 election.
  • 2023: Robert Hur is appointed by Garland to investigate President Biden's handling of classified documents.

Driving the news: Garland said Thursday that he "strongly" believes normal DOJ processes could have handled the Biden investigation "with integrity" — but that "extraordinary circumstances" led him to conclude a special counsel was necessary.

  • Garland didn't elaborate, but those circumstances undoubtedly include his decision less than two months earlier to appoint a special counsel to investigate Biden's chief political rival over his own classified documents scandal.
  • The distinctions between the Trump and Biden cases are significant, but just the presence of the files at Biden's private office and Delaware home has provided a massive political gift to Republicans.
Trump Truth Social post
Via Truth Social

Between the lines: Trump's war on institutions — and Democrats' response to a figure they view as uniquely dangerous — has fostered a system in which virtually any investigation of a politician is seen through a partisan lens.

  • Garland, a former federal judge, has been painstaking in his efforts to avoid the slightest possible appearance of politicization.
  • He specifically chose Trump-appointed U.S. attorneys to conduct both the initial review of Biden's classified documents and the subsequent special counsel inquiry.
  • Some former federal prosecutors have expressed skepticism that the appointment of a special counsel — which DOJ regulations say is warranted if there is a basis for a "criminal" investigation — was necessary based on the known facts.

What they're saying: Harry Litman, a former U.S. attorney and deputy assistant attorney general, believes Garland made the decision out of an "abundance of caution."

  • "I suspect the White House welcomes the decision, just to be able to say, 'We're totally on the up and up and DOJ is handling it with a Trump-appointed, hard-nosed U.S. attorney, which Hur is,' Litman said on CNN.
  • Andrew Weissmann, a lead prosecutor on the Mueller investigation, added on Twitter: "Appointment of Hur makes it much easier for Jack Smith to bring Trump [Mar-a-Lago documents] charges. Gives DOJ the necessary reality and appearance of balance and fairness."

The bottom line: None of these careful steps are likely to placate Republicans who see Garland as a partisan attack dog — and have made investigating the "weaponization of the federal government" a top priority of the new Congress.

Go deeper