Below is my column in The Hill on the appointment of a special counsel to investigate former President Donald Trump. All of the three main players — Trump, Attorney General Merrick Garland, and Special Counsel Jack Smith — will face immediate challenges in the legal arms race unfolding in Washington.
Here is the column:
There seemed to be enough torpedoes in the water in Washington this week that you could walk across the Potomac without getting your feet wet. On Capitol Hill, the new House Republican majority announced a series of subpoena-ready investigations of President Biden and administration officials. At the Justice Department, Attorney General Merrick Garland appointed a special counsel to investigate former President Trump for possible crimes ranging from the 2020 election to the Jan. 6, 2021, Capitol riot to the Mar-a-Lago documents controversy.
It was all reminiscent of the movie “The Lord of War,” in which a fictional arms dealer warns that “the problem with gunrunners going to war is that there is no shortage of ammunition.” The same appears true of rival government officials having no shortage of subpoenas.
In this atmosphere of politically and mutually assured destruction, there are some immediate threats for the three main combatants:
Attorney General Garland
When he announced the appointment of Jack Smith to investigate Trump, Garland explained that “based on recent developments, including the former president’s announcement that he is a candidate for president in the next election, and the sitting president’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel.”
In making that case for a Trump special counsel, however, Garland may have made a case against himself for refusing to appoint a Biden special counsel in the Hunter Biden scandal. Garland’s department is investigating potential wrongdoing that could involve the other referenced candidate, President Biden, in the Hunter Biden matter. That investigation should be looking at numerous alleged references to the president using code names such as “the Big Guy” in the context of receiving percentages on foreign deals and other perks. Yet Garland has refused to appoint a special counsel in an investigation that not only could prove highly embarrassing to the president but, in the view of some of us, could implicate him as well.
Congressional Democrats repeatedly voted to block an investigation of this alleged multimillion-dollar influence peddling by the Biden family. House Republicans are now poised to look into these foreign deals — and how the Justice Department may have stymied or slowed any investigation before the 2020 election.
While the special counsel appointment helps insulate Garland from claims about the use of his department for political purposes on any Trump charges, he may soon face new challenges, including possible contempt referrals if Biden officials or Democrats refuse to supply information or testimony to Republican House investigators. Garland has sharply departed from prior cases in which the Justice Department largely refused to prosecute such contempt referrals; he has been very active in pursuing Trump officials who failed to cooperate with Congress. He now may be asked to show the same willingness to pursue those who obstruct or defy House Republican investigations.
Former President Trump
The greatest threat clearly faces Trump himself. His announced intention to run for the presidency in 2024 may have expedited the appointment of a special counsel. With the expectation of a possible indictment, Trump may have wanted to frame the optics as a vendetta against a declared Biden opponent before his administration took any major step toward prosecution. Instead, it likely sealed the need for a special counsel.
Trump already has declared the move to be political and says he will not “partake in” an investigation.
A special counsel could make fast work of controversies such as Mar-a-Lago, which have been investigated for months and already have secured grand jury testimony. For Trump, having a special counsel in control, rather than an attorney general, may prove even more precarious. Some of the potential charges for unlawful transfer or possession of classified material historically have resulted in relatively minor charges. If this investigation produces the basis for an obstruction charge or misdemeanors, Garland might have been inclined to use his discretion to forgo prosecution and avoid political disruption or questions of bias. In contrast, after the expense and effort to create his office, a special counsel may feel less inclined to overlook a chargeable offense. The majority of people charged by former special counsel Robert Mueller faced relatively minor charges and served short terms in jail.
Trump also will face practical barriers. Prosecutors usually start with the low-hanging fruit in an organization, to coerce people to cooperate by threatening criminal charges. On issues such as obstruction, Trump did not allegedly act alone; there were staff and lawyers who made what the FBI claims were knowingly false or misleading representations. Those individuals must now be viewed by Trump’s counsel as having potential conflicts of interest, including his former counsel. The only way to avoid conflicts or vulnerabilities is to assemble a largely new staff that was not involved in either the Jan. 6 or Mar-a-Lago episodes.
That is the difference between “partaking” in a personal excursion and a criminal investigation: The latter does not depend on your participation.
Special Counsel Smith
Smith faces the unenviable task of investigating a presidential candidate less than two years before the election. Given the advanced stage of prior investigations, he could bring charges before Sept. 5, 2024 (or roughly 60 days before the election under Justice Department guidelines for election year filings). It is unlikely, however, that a charge against Trump could be tried in that time.
However, Smith’s first test will be to avoid the initial mistakes of a predecessor, Mueller.
Like Smith, Mueller was considered a natural choice as special counsel, given his extensive experience as a career prosecutor. However, Mueller’s investigation was undermined by his selection of a team — starting with his top aide, Andrew Weissmann, a controversial prosecutor who was accused of political bias. The investigation was further undermined by FBI personnel, including Special Agent Peter Strzok, who was later removed from the team and fired by the Justice Department; Strzok has since filed a wrongful termination lawsuit.
Smith can avoid tripping a similar explosive wire by selecting a team that is defined by its prior professional expertise, not its prior political views or associations.
He also needs to be wary of creative avenues to indict Trump. Smith was part of the prosecution team that convicted former Virginia Governor Bob McDonnell (R) on federal corruption charges in 2014. The Supreme Court unanimously overturned that conviction as having stretched the law beyond its breaking point. If Smith is going to be the first prosecutor to indict a former president, he needs to do so with unimpeachable evidence of an unchallengeable crime.
Only one thing is certain in any of this: It will not end well.
With both sides loading up staff and subpoenas, the start of the 2024 campaign season has all of the makings of an utter bloodletting. There will be ample support for both sides to fulfill their respective narratives — and no shortage of legal weapons — in this political war of attrition.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.