London. Attorney General Merrick Garland has now appointed two veteran prosecutors as special counsel to oversee the investigation into the handling of classified documents by President Joe Biden and former President Donald Trump. The investigation covers the time since Biden ended his term as vice president in 2017, and after Trump left the Oval Office in 2021.
Former Maryland federal prosecutor Robert Hur will investigate whether Biden or any of his staffers or aides improperly handled classified information. Jack Smith, the longtime top investigator at the Justice Department, is overseeing two criminal investigations involving former President Donald Trump. Garland’s goal, in both cases, is to protect the investigation from bias. But Trump and some of his aides accused him of political bias during this time. For example, in a highly publicized social media post, the former president argued that he would not get a “fair treatment” from Smith. Biden, for his part, has said he is “cooperating fully” with the Justice Department’s inquiry. However, Garland appoints Smith and Hur with the intention of fairness and justice.
Announcing that Smith would take charge of the Justice Department’s investigation into Trump’s role in the January 6 insurrection and Trump’s handling of classified government documents, Garland described Smith as someone who had “been a fair and steadfast prosecutor.” Has built a reputation as.” In appointing Hur, Garland “emphasized the department’s commitment to both independence and accountability in particularly sensitive matters and to making decisions unquestionably guided only by facts and the law.” In his own statement, Smith, who recently investigated and prosecuted the war crimes at the International Criminal Court in The Hague, promised to “independently … pursue the investigation … whatever the outcome of the facts.” and lay down the law.” From my perspective as a political scientist who studies presidential systems, I believe that while special counsels should be independent, they are not entirely so in practice. Here it is explained why this happens.
independent and special counsel
Impartiality in the Justice Department can be difficult to ensure, as the attorney general is appointed and accountable to a partisan president. It gives presidents the power to try to force the attorney general, the head of the department, to advance a political agenda. President Richard Nixon did so during the investigation of the Watergate break-in, which put him at risk of being implicated in his criminal acts. On the evening of October 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned.
Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also declined and resigned. Ultimately, Nixon ordered Solicitor General Robert Bork, the next most senior Justice Department official, to fire Cox. Bork complied. This shocking series of events, often referred to as the Saturday Night Massacre, demonstrated how presidents can exercise political power over criminal investigations. As a result of the Watergate scandal, Congress included the Ethics in Government Act of 1978.
This allowed an investigation into misconduct that could operate outside the control of the president. Following passage of this law, if the Attorney General receives “specific information” alleging that the President, Vice President, or other high-ranking executive branch officials have committed a serious federal crime, the Attorney General may initiate a special three- The judge will ask the panel to appoint an independent lawyer, who will conduct the investigation. The Ethics in Government Act disqualified Justice Department employees, including the attorney general, from participating in any investigation or prosecution that could result in, or the appearance of, a “personal, financial, or political conflict of interest.” In the decades following the law’s passage, independent lawyers scrutinized Republicans and Democrats alike.
In 1999, Congress allowed the Ethics in Government Act to expire. That year, then-Attorney General Janet Reno authorized the appointment of special counsels who could investigate certain sensitive cases, similar to the way independent counsel worked. Robert Mueller, who was appointed in 2017 by Deputy Attorney General Rod Rosenstein to investigate possible Russian interference in the 2016 elections and possible links between the Trump campaign and the Russian government, was a special counsel. Despite his long career under both Democratic and Republican presidents, some Republicans accused him of favoritism. In 2020, John Durham – another Justice Department veteran – was appointed as special counsel to investigate the developments surrounding Mueller’s appointment. Michael Sussman, a former Democratic Party lawyer and the target of that investigation, accused Durham of political prosecution. Sussman was later acquitted.
politicization of process
Although special counsel were considered similar to independent counsel, there are notable differences between the two. For example, while special counsels work independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsel and the scope of their investigation are determined by a three-judge panel, appointed by the country’s chief justice. Furthermore, since Congress has authorized an independent counsel, the president’s influence is limited by law. Conversely, since Justice Department rules authorize special counsel, a president can attempt to force the attorney general to change the department’s interpretation of these rules—or even rescind them altogether. Is – To influence or end the investigation of a special counsel.
In my own research, I’ve found that abuses of power are more likely in situations in which the president and attorney general are political allies. The independence of the Justice Department depends partly on who holds the offices of president and attorney general. Given that Trump and Biden could face off in 2024, it makes sense that Garland would want to appoint a special counsel to avoid directly overseeing the investigation of her boss and her boss’s political rival. Still, Smith and Hur will not be entirely independent of Garland, just as Garland is not entirely independent of Biden.
