Garland hires Lincoln to get Trump
or some realism about special counsel
The decision to appoint special counsel, although couched in legal terms, is political. Often the political is avoidance of conflicts of interest, occassionally it is a matter of extraordinary circumstances, and rarely is it done “in the public interest”.1
Each of the foregoing conveniently boxes the decision-maker from criticism that a criminal prosecution is partisan politics at its worst. When Donald Trump said he was going to put Hillary in jail in 2016, he boxed himself out and the Justice Department from ever trying to do so. There is a lesson in that.
The decision to appoint Jack Smith as special counsel to supervise the Mar-a-Lago documents case and the attempts to interfere with the 2020 election after the fact fits neatly into all three of the above boxes, but none of them really explains the decision well.
Why?
First, the decision to appoint special counsel and the announcement that Jack Smith was going to be special counsel was conspicuously short. Normally, there’s a “we’re going to appoint…” moment followed by days running into weeks before a name is chosen.
Attorney Merrick Garland had clearly already decided to appoint this man
special counsel and checked to see if he could extricate himself easily from his current position (he is prosecuting war crimes for the International Court of Justice at The Hague, Netherlands) before hand. The time frame was simply too short for any other explanation.
Two, in addition to having impeccable credentials, Jack Smith is a registered independent and looks like honest Abe. The looks might be just an added plus, but having someone without any partisan connections, given the MAGA faction of the GOP’s tendency to attack people as RINOs or Democrats, is critical.
Three, Jack Smith was picked because he is in the words of Manhattan DA Karen Friedman Agnifilo “a prosecutor’s prosecutor”, i.e. he is being brought in to prosecute not just as window dressing.
Four, the judicial sidecar of Judge Cannon’s exercise of equitable jurisdiction is headed to oral argument on an expedited appeal and virtually every legal expert believes the 11th Cicuit is going to send the Mar-a-Lago classified documents back to Washington, D.C., where a grand jury is empaneled.
Buried in Merrick Garland’s order appointing special counsel is the phrase “based on recent developments”. The announcement by Donald Trump that he is running for President and President Biden indicating he plans to seek reelection are certain developments, but Merrick Garland, much like former Attorney General Mike Mukasey2, is looking at the judicial battleground not the political.
Dispositive motions, dilatory pleadings, and interlocutory appeals do not makes for a clean prosecution and judges know this more than anyone. Garland wants Trump to have to decide upon pleaing to an indictment or going to trial on a case that he cannot win.
Fifth, with the appointment of special counsel before a change in party control over the House of Representatives, Merrick Garland has effectively shuttered out the GOP from meddling in a prosecution under the guise of oversight and put any Trump loyalists who have successfully “burrowed in” at the Justice Department between a rock and a hard place.
https://www.lawfareblog.com/mr-smith-goes-washington
Both Garland and Mukasey served as federal judges before becoming Attorneys General of the United States.