Donald Trump’s life is about to get very unpleasant.
There are a number of interesting aspects of Biden Attorney General Merrick Garland’s appointment of veteran prosecutor Jack Smith as special counsel to take over the Trump investigations – and we have to say “investigations,” plural, because there are several (as I’ve detailed here).
For starters, there is the illusion of independence. By the appointment, Garland is trying to convince the public that the Biden administration has disconnected itself from probes of President Biden’s most notable political rival. We’re to believe that it is Smith, not Garland and the Justice Department, who are driving the train.
It’s not true. As a matter of constitutional law, criminal investigation and prosecution are exclusively executive functions, and Article II vests all executive power in the president. All prosecutors who wield federal investigative and charging authority, whether they are special counsels or ordinary assistant US attorneys, answer to the attorney general and, ultimately, the president.
Moreover, though federal regulations imbue a special counsel with the patina of detachment from DOJ’s regular chain of command, they make clear that the Attorney General is still in charge. Smith will report to Garland. And Garland reports to President Biden.
In saying this, I am not accusing Biden of wrongdoing. I am just asserting remorseless facts – the kind that don’t care about appearances. Being president means you can run but you can’t hide. Biden has two choices: he can order that Trump not be investigated, or he can empower prosecutors to investigate Trump. Either choice carries potential political costs, but he can’t escape the need to make the choice.
The most interesting aspect of the special counsel appointment is its highly unusual circumstances. Usually in this sort of political context, a special counsel is named because it would otherwise look like the incumbent administration (Democratic, in this case) was harassing a political opponent (here, a Republican) in order to prevent the latter from competing for public office. In this nearly unfathomable situation, though, Democrats want Trump to run.
Democrats calculate (correctly, in my view) that Trump cannot win a national election but could win the GOP nomination. I think it will become increasingly obvious, as Trump’s troubles mount, that he won’t be the eventual Republican nominee. Nevertheless, his status as a former president and his bull-in-a-china-shop presence in the campaign primaries stand to damage other GOP candidates, who otherwise stand a good chance of beating Biden in November 2024.
Trump will claim the special counsel has been named because Biden knows that Trump is the favorite and needs to try to knock him out of the race. Don’t believe it. The truth is that Biden figures Trump, who is deeply unpopular outside his narrowing political base, may be the only Republican of stature that Biden can beat.
As long as he is a viable GOP candidate, Democrats want Trump in the contest. But they want him wounded by increasing scandal, and then prosecuted the moment he is no longer politically viable. It is now Smith’s job to do the wounding and prosecuting.
Last point: the special counsel – the latest iteration of what was known as a “special prosecutor” during Watergate and an “independent counsel” in the Bill Clinton era – is perhaps the most pernicious of government institutions . . . and that’s saying something.
Unlike all other prosecutors, a special counsel does not have to make reasonable judgments about how much of his office’s resources can be devoted to any one case at the expense of others. A special counsel has one job: investigate a single target (or set of targets). Virtually bottomless resources dedicated to the pursuit of just one case. To justify the expense of their investigations, special prosecutors are motivated to find something – anything – to indict.
Historically, that means special counsels take a long time and perform what is aptly called a probe – an extraordinarily intrusive inquiry, scouring every nook and cranny of the target’s life. And that happens even when the target is looking at just one investigation. Again, Trump is facing several: the January 6 case, the Mar-a-Lago documents case, and recently emerging investigations of whether the former president tried to sic the IRS on political opponents, and whether the federal securities laws were violated by the proposed merger by which he hopes to capitalize his new media venture – Trump Media, the host of Trump Social, a wannabe Twitter that Trump has made his main communications platform.
And for all we know, there are likely to be new investigations. Trump is behaving erratically and has a history of conduct that borders on obstruction (see, e.g., the retention of highly classified intelligence at Mar-a-Lago and subsequent efforts to conceal the breadth of it). This is just the beginning.
Smith’s probe is going to take months if not more, and put Donald Trump through several ringers. Democrats wouldn’t want it any other way.
Andrew C. McCarthy is a former federal prosecutor.