Attorney General Merrick Garland is acting with flagrant double standards in appointing a special counsel to investigate former President Donald Trump.
The code of federal regulations gives an attorney general broad leeway in deciding whether to appoint a special counsel. The code relies on the attorney general’s honor to ensure the leeway is used consistently. Garland may not deserve such reliance.
CFR 600.1 says a special counsel should be appointed if the ordinary Justice Department procedures would create “a conflict of interest … or other extraordinary circumstance; and that under the circumstances, it would be in the public interest” to do so. Yet Garland identified no specific conflict of interest pertaining to two investigations of Trump that Garland himself said already are being conducted “ably … in the best traditions of the Justice Department” and “courageously, steadfastly, and … honorably.”
The only reason Garland gave why the “public interest” necessitates a special counsel is that Trump has now announced he is a candidate for president in 2024 and Biden has “stated his intention” also to run again.
Ludicrously, Garland also said the appointment would make it easier for the cases to be investigated “expeditiously.” This latter claim flies in the face of the entire history of independent counsels and special counsels, which each dragged on for years in cases pertaining to Ronald Reagan, Bill Clinton, former Agriculture Secretary Mike Espy, Vice President Dick Cheney, and the Russia investigation related to Trump. None of them ended up nailing their most high-profile targets. Still, because a special counsel has only one job, without anything else competing for his attention, the very nature of special counsels is to use essentially endless resources to investigate every last lead exhaustively, often to the point of absurdity.
In sum, Garland’s appointment of longtime public-integrity prosecutor Jack Smith, who has a decidedly mixed record in high-profile cases, is likely not to expedite but instead to prolong the investigations of Trump.
Yet as Garland puts special resources into the Trump cases, he refuses to do so in the investigation into Biden’s son Hunter, which by available public evidence absolutely ought to involve questions about the president’s own role in Hunter Biden’s foreign business dealings.
If the possibility of a second Biden vs. Trump campaign requires a special counsel to look into Trump’s cases, why does it not require one for the Biden case or cases?
With CBS having recently joined the Washington Examiner, the New York Times, and the Washington Post in verifying the always-rather-obvious authenticity of Hunter Biden’s laptop, incoming House Committee on Oversight Chairman James Comer (R-KY) announced on Nov. 17 that he has copious evidence of “previously unknown transactions” showing that the president “personally participated in meetings and phone calls” that gave him direct knowledge of Hunter Biden’s business dealings. He said the Biden family business not only was “influence peddling” with entities “closely tied” to hostile foreign governments including China and Russia, but that it also “swindled investors of hundreds of thousands of dollars.”
So far, the evidence he has released, along with that compiled by Republican Sens. Chuck Grassley of Iowa and Ron Johnson of Wisconsin, gives abundant grounds for a major investigation not just into Hunter Biden but his father as well. Especially because it is now known that key FBI officials improperly tried to shut down the investigation into the Biden son, there is more reason, not less, to believe a real conflict of interest exists that keeps the Justice Department from objectivity related to the current president and his family.
Each attorney general should adopt, and publicly announce, a set of consistent criteria, more specific than the regulation provides, for when he will appoint special counsels. The default position, though, should be against special counsels except in truly extraordinary circumstances, because special counsels by their very nature tend to become at least as abusive as the investigatory ills against which they purport to guard.