A Glenn Thrush report in today’s NYT, “Turning Point for Garland as Justice Dept. Grapples With Trump Inquiries,” both shines additional light on the near-impossible politics around the case and casts doubt on whether the Attorney General is up to navigating the situation.
Attorney General Merrick B. Garland, a stoic former federal judge intent on restoring rule-of-law order at the Justice Department, gradually came to accept that he would need to appoint a special counsel to investigate Donald J. Trump if the former president ran for the White House again.
But that did not mean he liked doing it.
Mr. Garland made it clear from the start that he was not inclined to tap outsiders to run investigations and indicated that the department was perfectly capable of functioning as an impartial arbiter in the two criminal inquiries involving Mr. Trump, according to several people familiar with the situation.
But the appointment of a special counsel, Jack Smith, on Nov. 18, and a painstakingly planned rollout of the announcement, signaled a significant, if subtle, shift in that approach. Mr. Garland has shown a growing willingness to operate outside his comfort zone — within the confines of the rule book — in response to the extraordinary circumstance he now finds himself in: investigating Mr. Trump, a top contender for the 2024 nomination of a party that is increasingly rallying around the charge that Mr. Garland has weaponized the Justice Department against Republicans.
“There is a political dimension that can’t be ignored — this is an investigation that is being used by the target and his allies as a mobilization moment in a political campaign,” said Daniel C. Richman, a former federal prosecutor and a law professor at Columbia University. “That’s why you are seeing the department leaning forward in making these moves, and getting as much detailed information about an ongoing investigation out there as it can.”
Aside from Trump’s making the inevitable—a third run for the White House—official, nothing has changed. Prosecuting a former president, let alone the most politically polarizing president in American history and the past and likely future opponent of the sitting president, was always going to be politically fraught.
Still, Garland has been shrewd:
In studying how to proceed, Mr. Garland has steered clear of issuing the unusual public statements favored by the former F.B.I. director James B. Comey during the investigation of Hillary Clinton’s emails, believing that those actions, and political meddling during the Trump administration, violated department protocols.
The department’s leaders have, however, tried to counter Mr. Trump’s claims that they are engaged in a partisan witch hunt intended to destroy him.
Top officials, led by Deputy Attorney General Lisa O. Monaco, have leveraged Mr. Trump’s court challenges in the investigation into his handling of sensitive government documents as an opportunity to broadcast previously hidden details, while adhering to department policy.
The Justice Department did not officially support the effort to unseal the affidavit used to obtain the warrant for the search of Mr. Trump’s Mar-a-Lago club and residence in August. But when Mr. Trump’s lawyers did not oppose that bid, department officials seized the moment, and used the filing to offer a detailed timeline of Mr. Trump’s actions that established the public narrative of the case.
After Mr. Trump sought an independent review of documents retrieved from Mar-a-Lago, department lawyers discussed sharing several photographs of the seized records to provide visual proof that Mr. Trump had not fully complied with a subpoena in May that required the documents’ return, according to people familiar with the situation.
Mr. Garland did not object to the decision to release a single picture of the files, some bearing high-level classification markings, arrayed on the floor of Mr. Trump’s office — now the defining image of the investigation.
More on that later. As to the special counsel:
He cast the appointment of Mr. Smith as compulsory, dictated by the section of the regulation, derived from the law that defines the department’s authority, that allows an attorney general to install a special counsel under “extraordinary circumstances.”
Mr. Garland appears to view Mr. Smith as more of an internal decision maker than a public buffer: The attorney general intends to follow the letter of the regulations and will most likely accept Mr. Smith’s findings unless his conclusions are “inappropriate or unwarranted” under the department’s precedents, a person familiar with his thinking said.
That seems prudent. But it will have next to zero impact on public perception: those of us who think Trump should be prosecuted don’t need much persuasion that the investigation is just; those who think this is a Democrat Party™ witch hunt are unpersuadable.
Already, Mr. Garland is dealing with two comparable cases, both inherited from the Trump administration, and in each he has appeared inclined to abide by the decisions of the prosecutors overseeing the investigations.
Mr. Garland did not, for instance, overrule John H. Durham, appointed under Attorney General William P. Barr to investigate the F.B.I.’s inquiry into the Trump campaign’s links to Russia, when he brought two criminal cases, now widely seen as flimsy, that resulted in acquittals. He has also kept an arm’s length from the investigation of President Biden’s son Hunter by a Trump appointee, David C. Weiss, the top federal prosecutor in Delaware, even though he rejected the idea of appointing a special counsel.
This was a lose-lose situation for Garland, who made the best available bad call in letting politically-motivated investigations run in a futile attempt to appear apolitical.
Mr. Smith has been on the Justice Department’s radar for a while. One former official described him as a “golden unicorn” — a former prosecutor with three decades of experience investigating politicians and war criminals who is registered as an independent.
Another selling point: Mr. Smith’s time abroad during most of Mr. Trump’s administration. Since 2018, he has worked as a war crimes prosecutor in The Hague and can credibly claim to be approaching the investigations with an outsider’s perspective.
The appointment also merged two sprawling investigations, involving dozens of prosecutors operating on separate tracks, under a single supervisor, Mr. Smith.
Department officials emphasized that Mr. Smith would not start from scratch but would bring existing investigations to their conclusion and develop potential links between the two lines of inquiry.
Again, I’m not sure who will be reassured by any of this. But, yes, Smith appears to be an ideal candidate for the job and there’s value in having a seasoned pro coordinate these overlapping investigations.
The documents case appears to be proceeding more quickly than the Jan. 6 investigation. Public filings and interactions between law enforcement officials and defense lawyers indicate that a lot of work remains, and law enforcement officials with knowledge of the investigation emphasized that the department was unlikely to sign off on charges unless it was convinced that it would prevail in court.
Evidence made public points to a case based on a section of the Espionage Act, which makes it a crime to mishandle closely held national defense information — and a potential obstruction of justice charge stemming from the former president’s refusal to comply with the subpoena in May.
“The obstruction charge looks more and more to be the most compelling charge for the government to bring,” said David H. Laufman, the former chief of the counterintelligence unit of the Justice Department, which is leading the Mar-a-Lago investigation.
One of the biggest questions Mr. Smith is likely to face is whether prosecutors would consider bringing only an obstruction case without addressing the underlying possibility of an Espionage Act violation. Some prosecutors see that as the most straightforward path to a prosecution. Mr. Garland’s announcement of a special counsel referred to obstruction three times.
Again, this is a no-win situation. The last thing Garland wants is to bring a case against Trump and lose. At the same time, even non-Trumpers will raise an eyebrow if the only charge brought is for obstruction. While it happens routinely, the public perception—indeed, my perception—when it happens is that the prosecution couldn’t find enough evidence to make a case stick and is using obstruction as a backdoor way to save face.
To be sure, taking box after box of government documents to Mar-a-Lago, much less refusing to hand them over when ordered to do so, is a crime. Ordinary folks would surely go to jail for it. But I can’t imagine anyone would be satisfied with that being the thing for which Trump is prosecuted.
Ron Klain, Mr. Biden’s chief of staff, backed his selection as attorney general in early 2021, believing Mr. Garland would be the best person to restore order at the Justice Department after the Trump administration.
For his part, Mr. Biden believed Mr. Garland deserved an important position after the Supreme Court debacle, as did several key Republicans, ensuring his confirmation.
I was skeptical of the choice when it was first announced but was quickly won over when I learned more about his pre-judicial career.
Other factors might have played a part in his selection, according to several Democratic aides. Political advisers to Mr. Biden believed that picking someone with whom the incoming president had a closer relationship, like the former Alabama senator Doug Jones, would be seen by critics as an attempt to control the department’s long-running investigation of Hunter Biden.
In public, Mr. Garland has forcefully rejected suggestions that external political forces have influenced any of his decisions, and he has gone to extremes to avoid the slightest appearance of partisanship.
In October, he initially pulled out of a convention of police chiefs in Dallas when his staff flagged concerns that it could be interpreted as a violation of his ban on political speech in an election year, according to a person involved in organizing the event. He eventually attended, but only after his aides gathered new facts about the event that led them to reconsider.
Again, Garland is perhaps a bit naive if he thinks these actions will mollify Trumpers. But all he can do, really, is be above reasonable reproach.
Mr. Garland’s critics on the left have also expressed concerns about Mr. Smith’s appointment, contending it would delay a decision on the cases until after the 2024 campaign.
Mr. Garland resisted that characterization, and Mr. Smith, who is recovering from a knee injury in the Netherlands, issued an even more emphatic statement, saying that the “pace of the investigations will not pause or flag under my watch.”
If the rollout seemed to outsiders like a typically scripted statement, it was seen by the attorney general’s allies as a sign, albeit a modest one, that he is willing to make adjustments to confront the challenges ahead.
Mr. Garland waited three days before delivering a brief public explanation for the search of Mr. Trump’s Florida estate in August, giving the former president’s supporters time to spread vitriol and conspiracy theories.
When he appeared before cameras to announce Mr. Smith’s appointment three months later, he seemed determined not to repeat the delay, offering a far more expansive statement an hour after he had signed the order.
“Appointing a special counsel here is the right thing to do,” Mr. Garland said.
The political atmosphere is next to impossible to navigate. Garland isn’t likely to win over the skeptics but I don’t think they’re win-overable. I don’t know that anyone else could do any better than he’s doing given all of that.
