In the waning weeks of the Trump administration, when it was clear that the Justice Department soon would be run by President-elect Joe Biden’s appointees, there was clamor for Attorney General Bill Barr to appoint a special counsel for what the media refers to as the “Hunter Biden investigation” — but what should be regarded as the Biden family investigation, in which Hunter is the least consequential Biden, and his tax liability the least consequential aspect.
Barr refused to name a special counsel. It was the right call. His reasoning was straightforward. There was no conflict of interest in the Trump Justice Department’s investigation of a close relative of Biden, Trump’s arch political rival.
“Conflict of interest” is a term that easily can be distorted when ripped out of its context because its usage is in tension with its literal meaning. A criminal investigation is adversarial by nature. A defendant has no right or legitimate expectation in having a friendly prosecutor.
On the contrary, conflicts arise only when interests are aligned: When the Justice Department is in the position of investigating the incumbent administration of which it is a part, and in particular the president or someone closely tied to the president. The problem is patent: Not only is the Justice Department subordinate to the president, but the power it wields, which is executive in nature, derives wholly from the president, in whom the Constitution vests all executive power.
We need to remember these principles now, when some are suggesting that Attorney General Merrick Garland should appoint a special counsel to conduct what are quite obviously, whether the Department of Justice admits it or not, investigations of Donald Trump.
There is no conflict of interest in the Democratic administration’s investigation of the nation’s most prominent Republican, a former president and likely future presidential candidate — right now, the odds-on favorite to be President Biden’s opponent in the 2024 campaign.
Is there a danger that the incumbent administration’s law-enforcement powers will be weaponized for political purposes — indeed, that they are already being so weaponized? Of course there is. There always is. But to suggest that this creates a conflict of interest for the Justice Department as an institution is to misconstrue both the prosecutorial role and the criminal justice system.
The constitutional safeguard for a criminal suspect or defendant is not the prosecutor. It is the judge. Our system anticipates that each branch of government will overstep its authority; the other branches, by design, check and balance this tendency. In a real conflict of interest situation, the legitimate fear is that the Justice Department will fail to do its job with appropriate energy, not that the prosecutor will be overly aggressive.
The defendant’s principal protection from prosecutorial overreach is the court. In fact, in a case fraught with partisan politics, the conflict of interest to worry about is not an overzealous prosecutor, but a judge who is a partisan adversary of the defendant, or too closely aligned with the president’s party.
In connection with the search warrant just executed at Trump’s Mar-a-Lago estate, for example, there is more cause for concern that the magistrate judge who issued the warrant is an openly anti-Trump progressive than that the warrant was sought by a politically-motivated Biden Justice Department. Due process and the vital appearance of justice do not break down when the prosecutor goes too far; they break down when the court is fairly perceived as biased against the suspect and thus can’t be trusted to check prosecutorial excess.
Regrettably, there is not much that can be done if a judge who should recuse himself in the case of a search warrant application fails to do so. Search warrant issuance is a brief proceeding. Once it’s done, the search is quickly executed. That bell can’t be unrung. Nevertheless, Congress also checks prosecutorial excess by bolstering fair-trial rights. If Trump were to be charged with a crime, statutes and due process rules would enable him to seek to suppress evidence seized pursuant to the warrant if it were found to be unlawfully granted. He also would be able to seek the recusal of the judge assigned to the case if there is bias, to seek dismissal of the charges or other relief based on claims of prosecutorial misconduct, and to appeal to higher courts if the judge fails to give him a fair proceeding.
As far as the prosecutor is concerned, a conflict of interest occurs only if the public interest in a properly thorough investigation and prosecution of criminal wrongdoing is undermined by affinity between the Justice Department and the suspect.
Barr’s judgment call on the Biden investigation was correct because there was no conflict at the time he had to make the judgment. The case, moreover, was in the hands of a well-regarded prosecutor, Delaware U.S. Attorney David Weiss. On the special counsel question, Barr properly deferred to his successor, Garland, rather than saddle the Biden administration with a special counsel of Barr’s choosing. After all, it was the Biden Justice Department’s conflict, not the Trump Justice Department’s. If Barr had played politics, Garland might well have removed the Barr-appointed special counsel and reassigned the case away from Weiss. Instead, Barr did the right thing and Weiss is still the prosecutor.
Garland, by contrast, should appoint a special counsel under the regulations. I say that reluctantly because the special counsel is a pernicious institution that should be avoided when practical. But the Biden Justice Department cannot credibly oversee the Biden investigation: Not only does Weiss now answer to the suspect-president’s appointed AG, but because the investigation is, in part, a tax case, it also is being overseen by Justice’s Tax Division, which is run by Biden appointees.
That said, Garland and the Biden Justice Department are not conflicted in investigating Trump. The possibility of overzealousness is addressed by impartial judicial oversight. In fact, if Trump is eventually charged, the political motivation of the Biden Justice Department would give him powerful jury arguments to make — claims that are unavailable to most defendants, but claims that are always made in the utterly typical situation in which the Justice Department under one party brings a case against a political figure from the opposition party.
One last question for those suggesting Garland must appoint a special prosecutor: To whom do you think the Biden Justice Department would turn? Do you suppose Trump would be in better shape if Garland appointed, say, Eric Holder, Loretta Lynch, or some other prominent Democratic former prosecutor to take on the assignment?
Former President Trump has no right or reason to expect a friendly prosecutor. He has every right to expect a fair and impartial judge — and if there is still justice, he will get one if he is charged with a crime.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.