Trump's presidential bid should not deter Merrick Garland

Tthe confetti was barely swept away by midterm election celebrations when Donald Trump announced that he would run for president again in 2024. His candidacy raises a natural question – what happens now with the federal investigations into his conduct?

The Justice Department is investigating Trump’s role in the January 6, 2021, attack on the Capitol and related conduct. In addition, the DOJ is also investigating Trump’s detention sensitive government documents at his Mar-a-Lago home. While Attorney General Merrick Garland often reminds us that “no one is above the law,” investigations become more complex when they involve sensitive elections.

In such cases, two issues come into play – the application of the Justice Department’s policy against election interference and the consideration of the appointment of a special counsel. None of that should stop Garland from going full speed ahead in the Trump investigations.

Read more: How running for president affects Trump’s various legal challenges

First, on DOJ Policy states that prosecutors must always act with “honesty, neutrality and impartiality.” For this reason, they are prohibited from “timing” investigative steps or other actions in a case “with the purpose of influencing an election or with the purpose of giving advantage or disadvantage to any candidate or political party.” Most prosecutors read the memo broadly to prohibit taking steps not only “for the purpose” of influencing an election, but that would have effect on this. As a result, conventional wisdom says that the DOJ should go into hiding for about 60 days before an election involving someone who might be implicated, so as not to leave the public with the impression that the candidate is a crook when he runs out of time to defended himself and cleared his good name.

Here, Trump may have announced his candidacy so far in advance of the election to gain the upper hand in reporting on the investigation. If Trump is indicted on either or both counts, he can now say he was indicted only after announcing his efforts to oust Joe Biden from the presidency. Time will allow him to play the victim and claim the investigations are a partisan effort to discredit him.

While this strategy may help him politically, it does not involve DOJ politics. It is unlikely that Garland would withdraw so far before an election simply to prevent Trump from accusing him of bias. The policy likely won’t go into effect until 60 days before the first primary election in January 2023 at the earliest, and even that is a matter of interpretation.

Second, federal regulations provide that a special counsel must be appointed from outside the US government when an investigation presents a conflict of interest for the Department or “other extraordinary circumstances.” For example, in 2017, Robert Mueller was appointed to investigate ties between Russia and Trump’s 2016 presidential campaign because, as a sitting president, Trump had the power to fire anyone in the Justice Department. Investigating your boss is a clear conflict of interest.

An argument could be made that a special counsel should be appointed to take over the investigations now that Trump is a candidate. DOJ officials would have an incentive to keep Biden in office to keep their own jobs. But I think the better argument is that a special counsel is not needed and it would really hurt the investigation at this stage.

First, Biden is not yet a candidate and may not even be running for re-election. Even if biden runs, there is no guarantee that Trump will be nominated by the Republican Party. At this point, he is only running for the chance to run in the general election.

Second, there is no precedent for appointing a special prosecutor to investigate a presidential candidate, but there is precedent for not appointing one. When Hillary Clinton was investigated for the misuse of her classified information private email server in 2016, no special counsel has been appointed. On the other hand, appointing a special prosecutor to investigate anyone who announced his candidacy two years before the election would set a dangerous precedent. Any citizen by birth over the age of 35 can announce a presidential campaign. They don’t even have to follow because they can end their campaign at any time. Requiring a special attorney for every candidate who announces a campaign would be an easy way for the subject of an investigation to destroy the job.

Third, is there anyone who could serve as a special advocate in these cases who would provide the public trust required by the regulations? When Mueller was appointed, no one in law enforcement was so respected for his integrity, but that didn’t stop Trump from dismissively anyway, calling his investigation “an illegal and treasonous attack on our country” and his team “18 angry Democrats.” In our hyper-partisan world, DOJ critics will not be happy with anyone willing to take the job.

Finally, the special counsel’s independence is somewhat illusory anyway. The regulations allowed the attorney general to overrule a special prosecutor’s decision. The only remedy is disclosure—the regulations state that the attorney general must report to Congress when he rejects an action proposed by the special counsel. If the attorney general has the ability to influence the outcome of the investigation, then the special prosecutor is not truly independent.

In fact, the appointment of a special counsel appears to undermine the very sentiments expressed in the election sensitivity policy — that DOJ lawyers are committed to “honesty, neutrality, and nonpartisanship.” If so, then there is no need for a special advocate to assure the public of impartiality. The appointment of a special counsel suggests that the DOJ lawyers cannot be fair. If Garland wants to promote the idea that the Department of Justice is acting “without fear or favour,” as he likes to say, then no dedicated attorney can do the job better than one of his career attorneys.

In addition to these legal factors, practical considerations also militate against the appointment of a special counsel: time. The appointment of a new lawyer to take over the investigation will cause delays. A new lawyer will have to hire his own staff, all of whom will need time to get up to speed. If Trump wants to reclaim the Oval Office, then the Justice Department must complete not only the investigations but also the trials before January 20, 2025. That’s when the newly sworn-in President Trump can take the ultimate act of prosecution bias— and to have mercy.

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