Washington, D.C. Attorney General Merrick Garland announced the appointment of a special counsel to look into claims that there were classified documents at President Joe Biden’s former Washington, D.C., office, and residence. Garland said the appointment demonstrated the Justice Department’s dedication to independence and accountability in delicate investigations.
Those words ought to be recognizable if they did.
When naming a second special counsel in November for a different politically explosive probe into classified materials for another political figure — the retention of top secret records at former President Donald Trump’s Florida club, Mar-a-Lago — Garland used the same language.
In the past, the Justice Department has looked into issues involving the White House. But it is currently dealing with a rare occurrence: two presidents are engaged in concurrent special counsel investigations, each vying for time, attention, and maybe financial support but having fundamentally different factual bases. One more special counsel appointed by the Trump administration to look into the beginnings of the FBI’s Trump-Russia investigation is still active.
The special counsel convergence highlights how a Justice Department mandated to prosecute without fear or favor for almost two centuries has been entangled with presidential politics. The nomination seemed to acknowledge that investigations involving a president — in this case, Garland’s employer — are different, even though Garland emphasized Thursday that the department’s “regular processes” can handle such inquiries with honesty.
Garland is under pressure to reassure the public that both inquiries are conducted similarly despite having different facts.
Solomon Wisenberg, Kenneth Starr’s deputy during the independent counsel investigations into then-President Bill Clinton in the 1990s, stated, “I think it’s not just the right decision and a sensible one, I think it’s a politically essential move.”
Why should there be a special prosecutor for Trump, a Republican, but not for Biden, a Democrat? He said, “give yourself the anguish of the comparison of the two situations”?
Appointing a special counsel can help expedite an investigation, ensure it has the necessary resources, and create “at least the perception of impartiality and fairness,” according to Brandon Van Grack, a former Justice Department prosecutor who worked on Robert Mueller’s team as it investigated ties between Russia and Trump’s 2016 campaign.
It’s at least clear why the attorney general would desire all of those benefits concerning this ruling, Van Grack added.
A classified paper from Biden’s time as vice president was discovered in his library, and other classified documents were found in his garage, the White House revealed hours before the appointment. Garland claimed that on Thursday morning, the Justice Department was notified of the discovery of the secret paper at Biden’s residence by Biden’s attorneys. Other documents were first taken out of the garage by FBI agents in December, he claimed.
The president’s attorneys discovered a “limited number” of sensitive materials at the Washington, D.C., office of his previous institute, the White House confirmed earlier this week. After making that discovery, Garland requested an investigation from John Lausch, the U.S. attorney for Chicago, and a holdover from the Trump administration, even though Lausch is already preparing to leave the Justice Department.
Robert Hur, a former top Justice Department official in the Trump administration who served as U.S. attorney in Maryland, was chosen by Garland on Thursday to be the special counsel. He joins John Durham, who spent three and a half years looking into the Trump-Russia investigation and secured one guilty plea while losing two criminal trials, and Jack Smith, a former public corruption prosecutor looking into the documents discovered at Mar-a-Lago and attempts to rig the 2020 election.
Specially appointed prosecutors have a lengthy history of looking into political scandals, such as Iran-Contra under Ronald Reagan’s administration and Whitewater under Bill Clinton’s. But after a contentious and politically charged investigation that led to Clinton being impeached by the House but acquitted in the Senate, legislation permitting an independent counsel outside the Justice Department expired in 1999.
New Justice Department rules that gave the attorney general the power to designate a “special counsel” like Smith and Hur were introduced in its stead. The new system’s main goal was to prevent independent prosecutors from conducting sensitive investigations with uncontrolled and unsupervised authority over them.
Special counsels are free to pursue any cases they deem fit, but the attorney general does have the last say in the special counsel’s judgments. They can hire their prosecutors, receive funding from the Justice Department, have the right to office space, and are frequently expensive. For instance, the Mueller investigation spent more than $25 million in its first 1.5 years.
Although Garland stated on Thursday that Hur “would not be subject to the day-to-day oversight of any official” at the Justice Department, it’s unclear how much in-depth communication he will have with his special counsels. Officials have stated that they should only accept a special counsel’s proposed course of action if it significantly departs from the department’s standard procedure.
Furthermore, it is still unknown whether or not either special counsel inquiry into classified information will lead to criminal charges or, if so, how the two investigations would interact. Although the Biden investigation is much more recent than the Trump investigation, there has been no indication of the same accusations made publicly in the Mar-a-Lago case. According to Justice Department policy, a president in office cannot be indicted.
Former national security official for the Justice Department Mary McCord predicted that Smith would continue to consider the Mar-a-Lago facts and evidence. Before a special counsel was appointed, a search warrant affidavit outlining potential crimes was made public, which increased the likelihood that the case would result in an indictment.
