On Friday afternoon, Attorney General Merrick Garland announced the appointment of the second special counsel tasked with determining whether Donald Trump committed criminal misconduct. Trump and his supporters immediately denounced the appointment, which was not surprising, but unlike the widely heralded selection of special counsel Robert Mueller in 2017, Trump’s antagonists are struggling to process the development. Some observers see it as a promising sign that Garland is serious about potentially indicting Trump, while for others, the appointment confirms their worst suspicions about the attorney general — that he is too cautious, too process-oriented, and too interested in generating consensus.
There is meaningful support for both of these perspectives, but there is much more to take away and to process from Friday’s announcement.
To start, the Justice Department has publicly confirmed for the first time that Trump is a major subject — perhaps even the target, though that is hard to know from the outside — of two different, significant, and unprecedented criminal investigations. The newly appointed special counsel, Jack Smith, will now oversee the Justice Department’s investigations into Trump’s conduct in the run-up to the siege of the U.S. Capitol on January 6, 2021, as well as Trump’s retention of classified documents and possible obstruction of the government’s investigation. Of course, we have known since August that Trump is at the center of the classified-documents probe, but Friday’s statement from Garland was the first official, on-the-record confirmation from the top of the Justice Department indicating that Trump is a significant figure in the department’s criminal investigation concerning, as the appointment order put it, “efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College.”
In recent months, news outlets have reported on some key developments indicating prosecutors’ focus on Trump, but that should not obviate the historical and political significance of Garland’s confirmation. By the same token — and here, already, is where the tea-leaf-reading gets messy — Garland also seemed to confirm some unpleasant facts for Trump antagonists and Garland defenders alike, if only by conspicuous omission. To the extent there was any question left, the Justice Department is apparently not investigating Trump or his business for financial fraud despite having had ample reason to do so. Likewise, any hope that the Justice Department might revisit the Mueller obstruction probe — or even simply explain how Garland and the rest of his leadership team approached and resolved the issue upon entering office early last year — seems to be dead.
Still, given where we are today and in light of Smith’s appointment, it is probably now fair to say that Trump faces something like even odds of being indicted by the Justice Department over his efforts to overturn the 2020 election, his mishandling of classified information and obstructive conduct, or both. This is a remarkable reversal from where we were just a year ago, when it seemed — as subsequent reporting has confirmed — that both Biden and Garland hoped to avoid any prosecution of Trump. There is still no guarantee how this will all turn out — up to and including whether Trump himself will be charged in the first place — but a scenario that seemed extremely unlikely last year now seems very plausible.
After CNN first reported a couple weeks ago that Garland might appoint a special counsel, there was a wave of criticism from former Justice Department officials who argued that it was not necessary to appoint a special counsel and that doing so might be counterproductive, most notably by slowing the progress of the investigations. In fact, I suspect that the appointment was just as much a concession to the calendar than anything else.
That is because it is now clear that a criminal prosecution is not, by itself, going to prevent Trump from being reelected in 2024. Even if Trump were indicted early next year, the odds that he would be in a federal prison before November 2024 — when he might be on the ballot as the GOP nominee in the general election against Biden — are not good. At this point in time, there are probably too many variables, procedural wrinkles, and legal off-ramps in what would easily be the country’s most important, most politically consequential, and most closely watched criminal prosecution in modern history. There would likely be extensive pretrial litigation even before a trial, including potential interlocutory appeals that could go all the way to the Supreme Court; any trial would entail an extensive and meticulous presentation of evidence against the former president, no matter what the case is about, in order to maximize the odds of a conviction; and even assuming Trump were convicted at the end of it, there would be considerable post-trial appeals during which Trump would probably be permitted to remain free.
Even if Trump somehow were in a federal penitentiary by November 2024, he would almost certainly be released and return to the White House if he wins the general election. As for the legal mechanics to effectuate this, Trump could (among other things) fire the special counsel, appoint an attorney general who would dismiss the case(s) against him and terminate any ongoing investigations, pardon himself, or all of the above.
This may seem too forward-looking given the current posture of the investigations, which do not guarantee charges of any kind against Trump. But as an experienced practitioner and appellate judge for nearly a quarter century, Garland knows as well as anyone how long complex federal court proceedings can take, particularly when they are hard fought and involve prominent and well-resourced defendants.
Given the reality of how a prosecution of Trump might actually unfold, Garland’s appointment of Smith seems designed to create an apparatus for a Trump prosecution that could last into a second Biden term if he wins, and to allow that person to remain in charge if Garland — who just turned 70 — steps down as attorney general at some point. As a matter of prosecutorial management and hygiene, this is pretty defensible given where we are now, but it does mean that Biden probably has to win again for this effort to reach an orderly conclusion one way or another, whether Trump is ultimately charged before that or not.
Another important aspect of the current state of play that has been largely ignored is the legal and logistical complexity of having Trump at the center of two very different investigations. The people most eager to see Trump indicted over the classified documents probe — who would be happy to see him indicted over anything, really — generally ignore the fact that it would be far from ideal to charge Trump more than once if the Justice Department can also establish a case against him based on his outrageous post-election efforts to stay in power.
Ideally, if we are going to have the first-ever federal prosecution of a former president, we would get one indictment in one jurisdiction at one time that addresses all of it, or something as close to that as possible, both conceptually and temporally. I do not know if that will happen or even be possible at the end of the day if a case against Trump comes to pass (particularly given legal venue issues concerning the classified documents probe), but one person should definitely be managing both investigations, and apparently this is not a job that can easily be handled by people in Justice Department leadership now, all of whom have many other things to do.
There are very legitimate grounds for frustration with the creation of this belated investigative and prosecutorial apparatus. This could and should have happened over a year and a half ago — not necessarily the appointment of a special counsel, but a concerted, well-organized, publicly disclosed push by this Justice Department to determine whether and how to hold Trump and those closest to him accountable for their conduct in the run-up to January 6. The delay has already had a significant impact on how things might unfold — most notably, that a federal prosecution of Trump can now be tanked by Trump himself if he wins the GOP primary and a general-election contest against Biden.
People have every right to be annoyed and even angry about this depending on how things unfold. Still, this is better late than never, and if looking for people to commend for this shift in the Justice Department’s posture, probably give a significant amount of credit to Speaker Nancy Pelosi and the members of the House’s January 6 special committee. Whatever one makes of its ultimate output, the committee has easily conducted the most impressive and impactful congressional investigation of my lifetime.
As for what comes next, we are already being inundated with the usual sympathetic profiles of the new special counsel, whom the public and most observers — including former federal prosecutors — had never heard of before Friday afternoon. This includes me, and though I have nothing against Smith and share the admiration for his incredibly impressive résumé, I feel compelled to note that the department’s Public Integrity Section (or “PIN,” as it’s known internally), which Smith led from 2010 to 2015, is a notorious Justice Department backwater with one of the worst trial records in the department and some very high-profile screw-ups under Smith’s watch, including the failed prosecutions of former Democratic senator John Edwards and of former Republican Virginia governor Bob McDonnell, whose conviction at trial was overturned by a unanimous Supreme Court in 2016 (before Trump had appointed a single Justice).
It is not my intention to lay these failures entirely at Smith’s feet, though as the person leading the office at the time, he ultimately bears some meaningful responsibility. There is only so much that even the best prosecutor-turned-supervisor can do with an office that is widely acknowledged among former Justice Department prosecutors as lacking the necessary prosecutorial talent to fulfill anything close to its stated mission. (This is the same office whose career prosecutors in mid-2019 concluded, without interviewing a single person, that there was no basis to criminally investigate Trump over his effort to shake down the Ukrainian president.)
For now, expect the usual encomia to Smith’s brilliance and savvy — that he is straight as an arrow, apolitical, an amazing strategist and tactician and lawyer according to former colleagues, aggressive and fearless, and on and on. The profiles practically write themselves, which is not to say that they are wrong but that we should know better by now than to assume that a single person can solve the Trump problem.
Everyone would be well-advised to take all of this reporting and hype with a big grain of salt — remember “Mueller time”? — and to instead focus on what the special counsel produces if and when the time comes.
