West News Wire: A special counsel appointed by Attorney General Merrick Garland has been looking into former president Trump for the past two months, in part because of the fact that he kept a large number of secret documents at his home in Florida after leaving the White House. Therefore, many observers noted that Garland “had no choice” but to appoint a special counsel to examine President Biden as well after it was revealed last week that sensitive materials from the Obama administration had been discovered in his home and old private office.
Fair is fair, yet in this case, the fair also carries some risk. Given what is known so far, the cases are quite different, but their convergence increases the likelihood that the 2024 presidential race will feature a contest between two men who have both served as president and are currently the targets of federal investigations.
What function do special counsel investigations serve, where can these two lead, and how did they come to be such a prominent part of American politics? Here are some of the comments.
How should a government look into any potential crimes that its own officials may have committed? Since at least 1875, when Ulysses S. Grant appointed the first special prosecutor to look into the theft of whiskey revenue by federal employees only to fire him, the issue has puzzled Washington. The scandal served as a prelude to Richard Nixon’s ouster of the special prosecutor overseeing the Watergate investigation in 1973, an event that became known as the Saturday Night Massacre.
After Watergate, Congress passed a legislation allowing for expressly “independent” counsels who could not be as readily fired by the president or his deputies in an effort to resolve the conflict of interest inherent to such arrangements. They functioned without any restrictions from the Justice Department on the budget, scope, or duration of their investigations and were appointed by and reported to a panel of federal judges.
Special counsel investigations increased in frequency over the duration of these institutional reforms; all presidents since Nixon, with the exception of Barack Obama, have dealt with them.
Though it is debatable if they are succeeding in exposing and eliminating executive corruption. Special counsels have some protections against dismissal and greater freedom than U.S. attorneys, but they are still subject to the whims of the attorney general and ultimately the president, who is prohibited from being prosecuted for a crime while in office by Justice Department policy. Additionally, it is not necessary for the findings of a special counsel investigation to be made public or even sent to Congress.
“The history of independent prosecutors over the previous half century is a tortuous one in which the nation has never established a durable, nonpolitical tool for putting rogue presidents or other senior officials to account,” said Peter Baker of The Times in November.
The Presidential Records Act, which mandates that White House records be given to the National Archives and Records Administration when a president leaves office, was broken in both cases, according to Charlie Savage of The Times. A federal offense under the Espionage Act could be committed by someone who, without authorization, knowingly keeps a document related to national defense and refuses to return it when requested, or who, by “gross carelessness,” permits such a document to be misplaced, lost, or destroyed.
In Trump’s case, the National Archives eventually requested more than 300 missing materials from Trump in 2021. Trump’s tardy response and subsequent partial compliance with a demand, although falsely claiming he had, led to a court-approved F.B.I. search in August to locate the records.
According to the White House, in Biden’s case, his attorneys found three batches of documents on Nov. 2 at his think tank’s office, another batch on Dec. 20 at his Delaware home, and six more pages in January at the same address. They immediately notified the National Archives, which was unaware the documents existed.
There is no accusation that Biden harmed or destroyed any government documents; it appears that Trump did.
That does not mean Biden is innocent of any wrongdoing. The reasons and circumstances surrounding the documents’ placement, the significance of their contents, and the existence of further documents remain unknown. Even if the responses are unimportant, Biden’s actions nevertheless show “an egregious violation of the most fundamental security measures,” according to Walter Shaub, the former director of the Office of Government Ethics under President Obama. The White House has also come under fire for delaying public disclosure of the finding of the first batch of documents until after the midterm elections and for declaring on January 12 that the search was “obviously complete” before announcing on January 14 that further records had been found.
Some observers think that the American people will be able to distinguish between the two incidents without any further allegations of Biden’s malfeasance. This is why, according to Michael Tomasky, editor of The New Republic, “the special counsel may well wind up aiding Biden.” The special prosecutor in the Biden case, Robert Hur, “will affirm it, and most Americans will believe that” if the Biden records were accidentally released.
The more frequent conclusion among commentators of all ideologies is that it will now be politically impossible for the Justice Department to charge either individual with a crime since it will be difficult for the general public to distinguish between their situations. As The Wall Street Journal’s editorial board put it, “half the country would conclude the sitting president is prosecuting his chief political competitor for an offense that he also committed.”
There are others who think it would be proper for the special counsels to shift the blame on the general people, such Henry Olsen of The Washington Post. He adds that while it could be sound jurisprudence to look to the law to resolve what is really a political debate, doing so would be harmful to our democracy. The destiny of these guys can be decided by the people, who should hear the special prosecutors’ cases.
However, there is a chance that such a deferral would cast doubt on the value and lauded independence of special counsels. In less than six years, there have already been four special counsel investigations. First was the Mueller inquiry, which for two years dominated headlines but ultimately had less of an impact than Democrats and Republicans had feared. Then, in 2019, Trump’s attorney general appointed John Durham to lead a kind of meta-investigation of the Mueller investigation that is still ongoing, albeit with little to show for it but two acquittals.
The second inquiry, according to Neil Kinkopf, a law professor at Georgia State University College of Law, demonstrated a critical need for structural changes to the special counsel system. Kinkopf made this argument in 2021. His and other people’s ideas include requiring reports to Congress, shifting some of the attorney general’s authority to appoint and dismiss special counsels to a panel of federal judges, or creating a new division within the Department of Justice. These ideas would restore the department’s independence while preventing runaway prosecutors.
At the time, Kinkopf expressed concern over the public’s perception that special counsel investigations “may be exploited as a political weapon.” However, if the two new special investigations into Trump and Biden are likewise unsuccessful, the public may be disappointed.
