The latest Trump special counsel: six thoughts
There's no certainty it will lead to prosecutions
Merrick Garland announced today that he will appoint a special counsel to oversee the Department of Justice’s investigations into Donald Trump, including his involvement in the January 6th insurrection and the Mar-a-Lago documents probe. The move has been widely expected since it became clear that Trump was going to announce that he is running for president again in 2024.
The point of a special counsel is that they are given the resources and leeway to run a sensitive investigation without day-to-day oversight from the Department of Justice, which is supposed to mean they operate free of political interference. It was pretty much inevitable that Garland would do this as soon as it became possible for Trump to allege that he was being persecuted purely because he is Biden’s presumptive opponent in the 2024 election. It’s a way of protecting himself, Biden, and the department from that criticism, which while obviously bogus will be believed by many people.
This news just broke but here are my quick thoughts on the subject:
Don’t assume this will lead to prosecutions. One reaction to this news which I’m already seeing is the argument that Garland wouldn’t be doing this unless he strongly expects prosecutions. This “no smoke without fire” logic led a lot of people to get over-excited during the Mueller probe. But the logic of the special counsel cuts both ways: even if Garland doesn’t expect prosecutions, he’s going to want to protect himself from people on the left claiming he let Trump off the hook because he got cold feet. The special counsel helps give him that sort of shield.
We just don’t know what will happen. Without seeing everything that Garland has seen, we just don’t know what ways these cases are going. Trump seems to have pretty clearly broken the law in the documents inquiry, but actually proving it in court might be difficult. January 6th is even murkier from a legal standpoint. Putting a former president on trial like this has never happened, and there are all sorts of reasons it might go wrong (like where do you find an impartial jury?) Trump pretty clearly committed crimes as part of Russiagate but he didn’t get indicted for various reasons. We should learn from that experience to be cautious about what to expect.
This won’t protect Garland or the special counsel. Jack Smith, the prosecutor who has agreed to become the special counsel, is a hero. He is a highly experienced lawyer currently prosecuting war crimes in The Hague (my hometown!) who is choosing to insert himself into a personal and political maelstrom. The right will seek to defame and destroy him. Meanwhile Garland might get some cover with normie voters from the special counsel, but the right-wing attack machine will seek to portray him as leading a baseless persecution of Biden’s political opponents. The GOP-controlled House will go into overdrive trying to harm and sabotage both Garland and the investigation. Both Garland and Smith deserve defending by everyone who cares about the rule of law and presidential accountability.
Presidential accountability is really important. American politics risks entering a sort of doom loop where presidents can get away with whatever crimes they want because the mere fact of having been president protects them from prosecution. From Gerald Ford’s pardoning of Richard Nixon to Barack Obama’s decision not to press torture charges against Bush administration officials, there has been a bipartisan slide towards a strong, “imperial” executive, free from accountability. Showing that crimes have consequences is extremely important, because bad people who will be president in the future are watching right now to see what they will be able to get away with.
Trump and Trumpism must be defeated politically. On the other hand, we shouldn’t expect prosecutors and courts to do the job of ending the MAGA movement and the threat it poses to America. I think that after 2016 we saw many liberals really lean into the idea that Robert Mueller was going to save them from Donald Trump, which was a comforting but ultimately highly inaccurate worldview. Legal accountability absolutely should come - see point four - but there’s a chance that even if it does, it won’t be in a form that ends Trump’s political career. The hard grind of electoral politics is the only way to guarantee that.
Bad news for Ron DeSantis. Finally, Ron DeSantis is not going to be very happy about this. It might seem that being the center of a criminal maelstrom would harm Donald Trump, but it probably helps him with Republican primary voters. Every news cycle that is about how Donald Trump accuses the deep state of persecuting him is a news cycle in which Ron DeSantis has little choice but to nod meekly and agree. He can’t break with Trump for fear of alienating a huge part of the GOP base, a part he needs to win any primary. So this is probably good news for Trump in the primary, but bad news in the general, where we’ve seen that voters are turned off by his shenanigans and drama.
Those are my quick thoughts. It’s going to be interesting to hear from Smith and see what sort of operation he runs. Mueller set a high bar in terms of avoiding leaks and keeping his cards close to his chest, and it’s likely going to be a long time until we have clarity about where this is heading. But keep reading in the future for more insights, and have a good weekend.