Merrick Garland is outmaneuvered because he has outmaneuvered himself. The facts were not complicated, and the law was clear. The attorney general had Donald Trump merchandise after an August search and seizure of unauthorized documents at the former president’s Florida home and resort Mar-a-Lago. As soon as over-conservative The 11th Circuit Court of Appeals unanimously upheld the Justice Department’s search warrant on Dec. 1, allowing Garland to indict the former president. The Feds had documents and hard evidence that Trump thumbed his nose in an effort to turn him in. Garland knew the amount and classification level of documents at Trump’s residence. There is no arguing with obstruction of justice by Trump and his lawyers.
But Garland also knew what we didn’t: A few weeks earlier, Joe Biden’s lawyers had uncovered a file of government documents, some of them classified, in the Washington office Biden used for his work with the Penn Biden Center, a think tank. He founded after he served as vice president. Even allowing for the possibility that Attorney General Biden may have more government documents elsewhere, Garland could have easily separated the two cases and proceeded with Trump’s prosecution. The cases were not comparable because of the documents Trump moved from the White House to Mar-a-Lago and the corruption Trump engaged in to return them. Contrast that with the lack of documents in Biden’s possession and his cooperation with investigators. To confirm our suspicions that he wears suspenders and a belt, Garland hired Trump appointee John Lausch, the U.S. attorney in Chicago, to review Biden’s case.
Moving to the Trump burner, Garland was itching to pursue the case, so he appointed a special counsel until Nov. 18 to “oversee” what he described as an “ongoing investigation involving classified documents and other presidential records. A potential obstacle to that investigation, Florida Southern referred to and described in court filings filed in a pending matter in the District.” Garland announced that Trump’s entry into the 2024 presidency necessitated the appointment of a special counsel. Jack Smith, former chief prosecutor at The Hague, was tasked with investigating the January 6 incident and the Mar-a-Lago document. Quite a full plate there.
The Office of Special Counsel is a creature of Justice Department regulation. “The Attorney General … shall appoint a special counsel when he determines that a criminal investigation of a person or matter is warranted.” The special counsel is supposed to have “independent authority to exercise all investigative and prosecutorial functions” of the department and is not subject to the “day-to-day supervision” of anyone in the department, including the attorney general. Garland can reverse or modify special counsel’s actions only if they are “so improper or unwarranted that [they] Shouldn’t follow.” Bill Barr felt he could apply a lower standard in overruling Bob Mueller. Still, it’s highly unlikely that Garland would interfere with Smith’s charging decision in these legally and politically charged circumstances.
On November 18, Garland knew Biden’s papers were there. He should have known that the appointment of a special counsel to oversee an apparently parallel investigation of Biden’s papers would exacerbate rather than reduce the appearance of disparate behavior if Smith decided to indict Trump at Mar-a-Lago, and the Justice Department chose not to. to impeach Biden.
January 12 was an eventful day. Garland hired another special counsel, Baltimore-based U.S. Attorney Robert Hurr, to oversee the Trump administration’s investigation of the Biden documents. How many lawyers does it take to change a light bulb? That same day, Biden’s lawyers disclosed to the Justice Department that they had found six more pages of classified documents during a search of Biden’s personal library.
Now, at this point, based on what’s been publicly reported—even though we think the Mar-a-Lago case is fairly litigated—we don’t know if the two investigations, while superficially symmetrical, are even remotely comparable. Biden discovered the piece with us. We do not know the overall volume or classification level of classified documents. We do not know whether the original documents were stored under lock and key or were available to anyone. We also don’t know which documents relate to when Biden was chairman of the Senate Foreign Relations Committee, when he was vice president, or when he was president. Biden entered the Senate in January 1973, so, we know, there are papers related to Salvador Allende and Golda Meir.
What can be distinguished between the two cases? Barbara McQuaid, The former Obama-appointed US attorney in Michigan, tweeted: “The idea that documents found at Biden’s home affect Trump’s case is hogwash. Each case will stand on its own facts. If both commit the crime, both should be charged. But so far, only one appears to have acted willfully and obstructed justice.”
Biden’s situation may be an honest mistake. We just don’t know. And at this point, McQuade doesn’t know either. But Garland, who has all the documents, knows.
However, given the facts, Garland may have dug a hole for himself, causing further delay and a fatal blow to the ideals of principled impartial justice.
As Jack Goldsmith, a Harvard Law School professor and former Justice Department official, noted, this dual special counsel structure was never envisioned during the Justice Department’s regulations. There is no regulatory provision to harmonize the two reports to ensure that the same principles are applied equally in both cases. Goldsmith wrote The New York Times that “[e]Even if the Trump and Biden investigations are factually and legally quite separate, as they appear to be, the dual special counsel structure will make it difficult for the department to portray its decisions as ethical.” Indeed, now the National Archives is searching for unauthorized documents of all living former presidents and Reached the Vice Presidents. If the documents were found, would Garland need special counsel if he had unauthorized documents on Jimmy Carter, Dan Quayle, Bill Clinton, Al Gore, George W. Bush, Dick Cheney and Barack Obama? Of course not. But on what principle?
Returning to Biden and Trump, if Garland moves to reconcile the conclusions of the two investigations, it could completely erase the appearance and reality of independence. What if one counsel issues a report and the other a one-sentence statement?
The problem is not legal but political, an area in which Garland, a distinguished jurist and prosecutor, has less than stellar instincts. The political futures of both Trump, if nominated, and Biden, if he runs, may (with apologies to Henry Wadsworth Longfellow) “hang in the balance” on how this plays out.