“The deed is done.”

November 19, 2022

          We will discuss the appointment of the special counsel in a moment, but we must remain focused on “getting out the vote” in the Georgia run-off between Raphael Warnock and Herschel Walker.

         If you are engaged in “get out the vote” efforts and need volunteers, please post your request for volunteers in the Comments section of this newsletter. (Comments open to everyone.) If you are not involved in “get out the vote” efforts, please review the requests for volunteers in the Comments section.

         The margin of victory may be small, and every vote matters! No effort is too small or wasted, so if you can join the fight, please do! We will never know which interactions might tip the vote in favor of Warnock. Your efforts may be the “small act of democracy” that makes the difference in a closely contested race!

Merrick Garland appoints special counsel to investigate January 6th and theft of defense secrets.

          On Friday, Merrick Garland appointed a special counsel to take over ongoing investigations into the January 6th insurrection and the theft of defense secrets. Although I believe the appointment was unnecessary, “the deed is done.” Accepting the facts as we find them, the appointment of Jack Smith has much to recommend it. Let’s look at the positive aspects of the appointment before examining the question of how we got to this point.

          Merrick Garland’s statement announcing the special counsel is here: Attorney General Merrick B. Garland Delivers Remarks on the Appointment of a Special Counsel | OPA | Department of Justice. The operative language from the announcement is this:

Based on recent developments, including the former President's announcement that he is a candidate for President in the next election and the sitting President's stated intention to be a candidate, as well, I have concluded that it is in the public interest to appoint a Special Counsel.

Such an appointment underscores the Department's commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously and to make decisions indisputably guided only by the facts and the law.

Today, I signed an order appointing Jack Smith to serve as Special Counsel. The order authorizes him to continue the ongoing investigations into both of the matters that I have just described and to prosecute any federal crimes that may arise from those investigations.

          The good news in the above statement is that special counsel Jack Smith will be “continu[ing] the ongoing investigations” rather than starting from scratch, as Robert Mueller did. Although not explicitly stated in the press release or the order (below), it appears that existing DOJ and FBI staff can continue to work on the investigations. That arrangement should minimize any delay that is inherent in switching leadership of a major investigation.

          More good news is that Smith is, by acclamation, a superb choice for the appointment. See Who is Jack Smith, the special counsel named in the Trump investigations | CNN Politics.

          As Larry Tribe tweeted,

If a special counsel was to be appointed, I can think of no-one better suited than Jack Smith. Vast experience prosecuting public corruption cases, treacherous national security violations, and crimes against humanity. Absorbs complex facts instantly. Perfect for Donald Trump.

          Even better news is contained in the order entitled Appointment of John L. Smith as Special Counsel, which sets forth a broad scope for his investigation. Because the scope of his investigation is a “continuation” of existing investigations, the order confirms that the DOJ was pursuing Trump on multiple fronts. The order says that Smith

is authorized to conduct the ongoing investigation into whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021;

[and] is further authorized to conduct the ongoing investigation referenced and described in the United States' Response to Motion for Judicial Oversight and Additional Relief, Donald J Trump v. United States [i.e. the theft of defense secrets at issue in the Mar-a-Lago case];

[and] is authorized to prosecute federal crimes arising from the investigation of these matters.

          Both Merrick Garland and Jack Smith attempted to assuage concerns that the appointment of a special counsel would delay the investigation. Merrick Garland said, “I am confident that this appointment will not slow the completion of these investigations.” Jack Smith issued his own statement, saying

The pace of the investigations will not pause or flag under my watch.

        Do not conflate the investigations by Jack Smith and Robert Mueller. Smith will have the benefit of stepping into an ongoing investigation rather than starting from scratch. Indeed, it may be that we “traded up” by putting the “more aggressive” Smith in charge of the investigations rather than leaving them in the hands of Merrick Garland.

          For an upbeat review of the appointment of special counsel Jack Smith, see the always wise Jennifer Rubin, The Washington Post, Opinion | Merrick Garland was right to appoint a special counsel. She concludes,

“The department will prosecute Trump if the facts and law support such action. In that singular sense, nothing has changed.”

          Finally, many observers interpret the appointment of a special counsel as confirmation that an indictment is both certain and (possibly) imminent. That is one reasonable interpretation of the development, but the opposite interpretation is also plausible, i.e., that Merrick Garland does not want to re responsible for any decision not to prosecute. But we are all guessing and reading tea leaves, so let’s restrain our irrepressible desire to know the future. We can’t. We have to wait for it to arrive.

          All in, we have reason to be optimistic and hopeful that the appointment will not slow the investigation and will result in an indictment sooner rather than later.

          But there are downsides to the appointment that should not be dismissed.

          First, we must recognize that the need to appoint a special counsel lies at the feet of Merrick Garland. The DOJ did not convene a grand jury until approximately March 2022. (Proof: Every subpoena issued by the two grand juries investigating January 6th and the theft of defense secrets bears a “2022” prefix—indicating the year in which the grand jury was convened. See also, Former Trump aide Navarro says he has received a grand jury subpoena related to Jan. 6 (msn.com), dated May 31, 2022 (relating to Grand Jury Subpoena #2022-052590979 delivered to Navarro in late May—the first known subpoena issued by the grand jury).

          Thus, it is clear that Merrick Garland delayed for fifteen months before convening a grand jury to investigate the ringleaders of the insurrection—inflicting an unforgivable and irredeemable injury on the pursuit of justice. If Garland had acted with the urgency and dispatch appropriate to an insurrection, Trump would have been indicted months ago. Trump exploited Garland’s delay by prematurely announcing his candidacy for president, thereby manufacturing the “extraordinary circumstances” that justified the appointment of a special counsel.

          Second, Garland has reinforced the appearance that there is a special standard of justice (and deference) that applies to Donald Trump. Garland claims that the overlapping candidacies of Trump and Biden constitute an extraordinary circumstance warranting the appointment of a special counsel. Okay, point taken. But yesterday, the GOP caucus announced that the new Congress would investigate Hunter and Joe Biden over Hunter’s business transactions in Ukraine and China. At the same time, the DOJ is investigating Hunter Biden over the very transactions that Republicans claim implicate his father. Why is there no special counsel for the investigation of Hunter Biden and, by implication, his father? While there may be valid reasons for the differences in treatment, Garland has reinforced the perception that Trump is subject to special deference—whether he intended to or not.

          Third, the appointment of Jack Smith will introduce inevitable delay. We should not fool ourselves or engage in disingenuous arguments to wish that inconvenient fact away. Smith is stepping into a massive investigation and must form his own judgments. To do so, he must undertake a serious review of the evidence. To argue that such a review is de minimis suggests that Smith’s appointment is window dressing.  It is not; his appointment, therefore, introduces some element of delay. Let’s not pretend otherwise.

          And speaking of delay, there is a little noted line in today’s NYTimes article discussing Jack Smith’s background:

Mr. Smith will take on the role of special counsel after leaving his current position as a specialist prosecutor based in The Hague investigating war crimes. He will remain in the Netherlands for some time, according to the Justice Department, in order to recover from a recent bicycle accident.

          Obviously, Smith can work remotely from the Netherlands. But if he is unable to travel to the US because of an injury, that suggests there are limitations on his ability to “hit the ground running” in the US.

          Finally, the appointment does not relieve Merrick Garland of making the momentous decision to prosecute Trump—or not. So, what’s the point of the special counsel? Republicans do not believe that Smith interjects a layer of objectivity and impartiality. What audience is Garland trying to reach with his appointment of Jack Smith? As usual, Garland is placing his concerns about the reputation of the DOJ above the mission of the DOJ to pursue justice. Democracy teetered on the brink on January 6th; the threat remains; yet Garland worries about the reputation of the DOJ first and foremost. His priorities are wrong.

Concluding Thoughts.

          I do not mean any of the above to diminish the positive aspects of Smith’s appointment. After Garland’s announcement, we know that Trump is in deep legal jeopardy on multiple fronts. That is reassuring. Smith is competent and aggressive. That is good—and may be better than we have with Garland in charge.

          So, let me give you the guidance I am giving myself this evening: Take a breath; set aside feelings of disappointment, dismay, and anger; allow the special counsel appointment to unfold. It may all turn out for the best. In the meantime, we have elections to win and groundwork to lay for 2024. That is a more productive use of our time than second-guessing Merrick Garland. “The deed is done.” Whether the “doers will be undone” remains to be seen.

          Have a good weekend! Talk to you Monday!