Merrick Garland tries to hide behind special-counsel appointments as if he were not pulling the strings.
The topic of my Saturday bit was the constitutional doubt about the legitimacy of Jack Smith’s special-counsel appointment. Basically, Smith does not qualify as an officer of the United States, the status needed to wield federal prosecutorial power as an ultimate decision-maker. In an anxious effort to save his gig, Smith now claims that this is not a problem because he is closely supervised by the man who appointed him, Attorney General Merrick Garland.
This is hilarious. Legally, Smith’s appointment was utterly unnecessary because there is no conflict of interest in the Biden DOJ’s investigating and prosecuting Donald Trump. The appointment was strictly a political gambit: Its purpose was to enable Garland and his boss, President Biden, to project the fiction that Biden and his Justice Department are not the guiding forces behind the Biden administration’s prosecutions of Biden’s opponent in the 2024 election.
For that reason, Garland has maintained since appointing Smith in November 2022 that Smith is an independent actor. Yet, as I summarized a couple of weeks back:
Look, for example, at the brief Biden DOJ special counsel Jack Smith has filed in the Trump Florida case, in which his constitutional legitimacy as a supposedly independent prosecutor has been challenged. Don’t have time to read a short brief? Okay, just skim the table of contents: “The Special Counsel reports to and is supervised by the Attorney General”; “The Special Counsel is subject to supervision and oversight”; “The Special Counsel is removable by the Attorney General”; and so on. It’s the same in Smith’s Washington, D.C., case against Trump. At the oral argument in the immunity case, asked by Justice Samuel Alito whether he was speaking only on behalf of the special counsel, Smith’s deputy, Michael Dreeben, replied, “I am speaking on behalf of the Justice Department, representing the United States.” (See Transcript, p. 109.)
Smith’s new version of events — basically, “You know, come to think of it, Garland is supervising me, after all” — does have the virtue of constitutional accuracy: All executive power is reposed in the president; prosecution is a quintessentially executive power; the president therefore appoints an attorney general (with the advice and consent of the Senate) to oversee the execution of his prosecutorial duties; and that attorney general is the ultimate decision-maker regarding federal prosecutions.
Smith, we’ll recall, is not the only Garland-appointed special counsel who has been closely supervised by Garland. As I further noted in the above-excerpted post, Robert Hur was the special counsel Garland appointed to investigate President Biden’s decades-long unlawful retention of classified intelligence.
Hur reported directly to Garland. All the arguments that Smith is now making about how he is a legitimate actor because he is supervised by Garland applied equally to Hur. Meaning: Hur was acting under Garland’s direct supervision when the decision was made to recommend against an indictment of Biden — even though Biden had unlawfully, willfully, and knowingly retained classified information in unauthorized locations — because he assessed that Biden was so mentally impaired a jury might acquit him.
This was a nonsensical decision as I pointed out at the time — in a criminal prosecution, the issue for the jury is the defendant’s state of mind at the time he committed the crimes in question, not at the time he is brought to trial. (Hur’s observations about Biden’s deteriorated state could render him unfit to stand trial and participate in his defense; that, however, has nothing to do with whether he had the mental capacity at the relevant times to commit the illegal document-retention crimes.) But for present purposes, the point is: This was ultimately Garland’s decision. The special counsels report to and are supervised by Garland.
As we have detailed any number of times, Smith, under Garland’s supervision, has indicted Trump in Florida on 32 felony counts of illegal document-retention. Hur, under Garland’s supervision, excused Biden on an unknown number of counts of illegal document-retention.
Of course, the Biden Justice Department has rationalized that the cases are not the same because Trump obstructed the investigation while Biden cooperated. But again, that would be a reason to indict Trump, but not Biden, for obstruction; it does not justify disparate treatment of the same document-retention offenses.
Garland tries to hide behind special-counsel appointments as if he were not pulling the strings. But he is the decision-maker. The same attorney general made the call regarding the same crimes committed by Trump and Biden. Garland’s call: Trump is charged with 32 crimes; Biden gets a complete pass.