Merrick Garland’s special counsel conundrum

For quite different reasons, both Republicans and Democrats are unhappy with Attorney General Merrick Garland for his decision to appoint special counsels to investigate possible criminal mishandling of classified documents by current and former presidents. He deserves considerable sympathy for his current conundrum, which is largely not of his own making.

To begin, given its long history of aggressive actions when classified documents are not properly secured, the Justice Department had to open investigations in both situations based on the known facts. As to the Biden documents, Garland probably would have appointed a special counsel based solely on the discovery of three sets of improperly stored classified records, but his prior appointment of a special counsel for former President Trump’s superficially similar misconduct eliminated any possibility of another choice. On the plus side, the appointment of the Biden special counsel should avoid the attorney general being summoned to the House Judiciary Committee to explain why he was not taking Biden’s apparent mishandling seriously.

Having two special counsel investigations at once is not necessarily a problem, but this particular combination is going to create a real headache for the attorney general. The principal reason is that the Justice Department’s regulations are clear that only the attorney general can make the final decision on whether to bring an indictment in all special counsel cases. 

Just as it was former Attorney General William Barr, not Special Counsel Robert Mueller, who had the power to decide what to do with the allegations of obstruction of justice and conspiring with the Russians to interfere with the 2016 elections facing Donald Trump, so here Garland must make the final call. Thus, the appointment of a special counsel is at best a reprieve for Garland that will also give him the benefit of assessment of the case from an apolitical professional prosecutor.

Of course, there are many differences between the cases, or at least as far as we know the facts in the Biden case as compared to what is public in the Mar-a-Largo investigation. Both investigations involve alleged mishandling of classified information — although the Trump probe also extends to the very different facts regarding the investigation into Jan. 6  — and so ideally the attorney general would want to decide what to do in both cases at the same time so that he can be consistent. 

Meanwhile, the Biden inquiry is just getting started, whereas the Trump investigation has been public for many months. Because some, or perhaps all, of Biden’s records are from his time as vice president, it will surely be time-consuming and perhaps very difficult to determine why they were not properly handled when he left office, as well as who else may have had access in the intervening years. Garland is already under criticism by some Democrats for his lack of action against the former president, and the Biden inquiry will surely slow the process down. Moreover, the option of concluding the Biden matter on a fast track runs the very considerable risk of Republican claims of whitewashing, especially if charges relating to classified documents are brought only against Donald Trump.

Garland must also take into account the potential Jan. 6 charges against the former president that are assigned to his first special counsel. It seems highly likely that the Trump special counsel will make his recommendations for all possible charges at the same time, and the attorney general would almost certainly want his all options on the table. 

Among other reasons that Garland will want to have that choice is that the Jan. 6 case would be brought in the District, where the government would have a jury that would not likely support Trump, but the classified information case might have to be tried in Florida, where a pro-Trump jury is much more likely. The classified information case against Trump will be simple for the jury to understand and can be tried relatively quickly, with just the opposite being true for a Jan. 6 trial. And to add the Biden case into the mix is certain to make the decision even harder for Garland, especially because the Justice Department has a formal opinion that precludes bringing charges against a sitting president. Meanwhile, the clock is ticking, and every day’s delay makes it seem more political to indict Trump now that is a declared candidate for 2024.

Unfortunately, the decisions will not get any easier the longer the process goes on. The Biden revelations further complicated the choices for the attorney general, but if the saying that “the buck stops here” ever had any bite, it surely does here. 

If, in the end, Garland decides against bringing criminal charges against Donald Trump, he can still file a civil case against him for inciting the Jan. 6 insurrection, which caused millions of dollars of damages to the Capitol and required the government to bring in the National Guard for two months to prevent a recurrence. That case could not send the former president to prison, but it could produce a substantial measure of accountability, which may be all that is possible in today’s highly charged political climate.

Alan B. Morrison is an associate dean at George Washington University Law School where he teaches civil procedure and constitutional law.