Attorney General Merrick Garland announces Jack Smith as special counsel to oversee the Justice Department's investigation into the presence of classified documents at former President Donald Trump's Florida estate. Friday, Nov. 18, 2022. (AP Photo/Andrew Harnik)

I was on an Amtrak train headed home from New York on Friday afternoon when my phone began to light up.

The first text was succinct: “Fuck Merrick Garland. What a monumental coward.” Oh, no. What now, I wondered. Was the attorney general closing the criminal investigation into Donald Trump’s hoarding of sensitive national security documents at Mar-a-Lago?

Then the related details popped up on the screen.

Garland was appointing a special counsel to take over the federal criminal probes of the former president, both the Mar-a-Lago documents and Trump’s role in the 2020 election interference and the January 6 insurrection. Okay. I exhaled; it was not a declination. But then my heart sank anyway. This is not a declination, but it’s a profoundly unnecessary delay that could jeopardize the cases against Trump.

If you’ve followed my writing about the attorney general, you’ll know that I have been steadfastly of two minds about him—skeptical at the start but, over time, beginning to trust him. On the train, I thought: “Where was that bold attorney general I had admired three months ago in the hours after the Mar-a-Lago search?” That feeling of shock and awe that I described here was gone. In the Monthly, I also praised Garland for turning up the heat on white-collar crime. But in his early days on the job, I had been furious over the Justice Department’s slow response to everything from the evidence unearthed by Robert Mueller to Garland’s adhering to Bill Barr’s policy of blocking the defamation lawsuit against Trump, filed by my friend, the author E. Jean Carroll.

With the appointment of a special counsel, I felt deflated. The precursors to special counsels were special prosecutors, a status created by the Ethics in Government Act of 1978 in reaction to the Watergate scandals. The statute’s creation of a special prosecutor appointed by a three-judge panel after a request by the attorney general was meant to insulate the Justice Department from politics in both deed and appearance. In 1983, the law was revised, including changing the prosecutor’s name to “independent counsel.” Yet too much independence in the hands of the special prosecutor Kenneth Starr led to the public release of a petty and prurient report detailing Bill Clinton’s intimate relationship with Monica Lewinsky. In response, after the expiration of the independent counsel law, retooled special counsel regulations were created, designed to give the attorney general more control and the special counsel a bit less independence. It took about a nanosecond for Team Trump to call Garland’s appointment of a special counsel a “political stunt.” In today’s hyperpartisan atmosphere, there is no insulation from politics.

Until that grim moment on the train, I fully expected the Justice Department would indict Donald Trump in connection with the purloined papers as early as next month. I believed that charges would likely be filed for mishandling national defense information (espionage), obstruction, and concealment of public records. These are the offenses identified in the Mar-a-Lago search warrant. And, as for the insurrection, I believed that sometime early next year, there could be additional charges related to January 6, including conspiracy to defraud the United States, obstruction of a congressional proceeding, and possibly seditious conspiracy. I said as much in a conversation with Matthew Cooper, published here in mid-August.

But now, this jarring, unneeded appointment of a special counsel upended all of my thinking—an unexpected announcement Garland justified by Donald Trump announcing his campaign for president. It meant that by declaring, Trump had done what he had hoped his candidacy would do—delay or derail federal indictment. Garland cited President Joe Biden’s latest comments about running for reelection as another reason for tapping a special counsel. But the now-octogenarian president has been saying the same thing since he was inaugurated—that he intends to run but has not rendered a final decision.

If citing Biden and Trump’s 2024 plans were plausible reasons for the special counsel appointment, Garland veered into prevarication when he said the appointment would not cause any delays. But that’s not credible. If the investigation had the appearance of politics and merited a special counsel, then surely that special counsel would have to review all of the evidence accumulated, assess the FBI and DOJ personnel working on the case, and presumably do some of it over again.

Wouldn’t the special counsel, at the very least, need to hire a new team of attorneys? Find office space? Secure dedicated FBI agents? Procure off-grid computers and phones? Swear in a new grand jury?

All of this would and will take time. The last special counsel investigation of Trump lasted nearly two years, from appointment to an official report. And we still have not seen Mueller’s full report. Worse, that report laid a clear blueprint for an indictment on obstruction, yet both Barr and Garland ignored it. Why wouldn’t the attorney general ignore this next one too?

Two years is a very long time. In November 2024, we will have a president-elect, maybe Trump himself, who, once in office, could toss this investigation into the dustbin just as House Republicans will do with the January 6 Committee the first moment they can. What with the office of legal counsel memo that forbids the prosecution of a sitting president, would careerists in a Trump DOJ even bother to indict or try him? And even without that, he would pardon himself upon taking office.

Don’t worry about the delay, some in the legal Twittersphere offered reassuringly. It might be months, not years of delay. Besides, Garland not only knows what he’s doing. He’s playing three-dimensional chess, they wrote. Perhaps, but delay brings uncertainty and is a more formidable opponent than a supercomputer. Witnesses can change their minds, leave the country, or even die. Unknown unknowns lurk.

Then there was another friend’s hopeful tweet. “No need for Garland to appoint a special counsel unless you’re going to indict.” That also seemed plausible: Why name a special counsel if you’ve ruled out an indictment? I held my judgment until I found out who he had selected.

Someone named Jack Smith. A well-respected, hardworking attorney who served as the head of the DOJ’s public integrity unit and, before that, coordinated the investigation of war crimes for the International Criminal Court in the Hague.

Lauded as a prosecutor unafraid to take tough cases, Smith has a sterling résumé but one marred by losing some high-profile cases. In 2014, his unit lost the campaign finance case against the former presidential candidate John Edwards.

When his team indicted former Virginia Governor Bob McDonnell on public corruption charges in 2014, it secured only a short-lived conviction. A unanimous Supreme Court—you don’t see that often—vacated the Republican governor’s conviction. As I wrote in Big Dirty Money, McDonnell was not indicted under the main federal bribery statute (because he was a state, not federal, official). However, the prosecution agreed to reference that important law for purposes of interpreting the actual charges. As a result, the McDonnell decision not only cleared the governor but continues to make it difficult to bring charges against federal officials.

Other cases are equally dispiriting. Smith’s attorneys failed to win the bribery case against Senator Bob Menendez. After a hung jury in late 2017, the DOJ planned a retrial. But, before that happened, a judge acquitted the New Jersey Democrat on many of the charges. A week later, the Justice Department dropped the case entirely. Disappointing. And yet, on the other hand, clearly this guy has not been afraid to bring tough cases.

While I wondered whether Smith was a good choice or a bad one, a new message popped up on my phone. “What do you think about the appointment of the special prosecutor?” a law professor friend inquired via Facebook Messenger.

I have not gotten back to her yet. But here’s my response: The proof is in the prosecution, and Merrick Garland blinked.

All eyes should now be on the investigation in Fulton County, Georgia, into the efforts of Trump and his acolytes like Rudy Giuliani and Lindsey Graham to make Republican Governor Brian Kemp and Secretary of State Brad Raffensperger vacate Biden’s win in the state and to overturn the 2020 election. The Fulton County district attorney, Fani Willis, showed courage and smarts in 2014 as a prosecutor in the office, taking on a complicated and politically fraught case of massive test cheating in Atlanta public schools. Willis adroitly used state racketeering laws to flip witnesses and successfully prosecuted 11 out of 12 defendants. In January 2021, Willis was sworn in as the new DA after ousting a six-term incumbent. She put her hand on the Bible just a day after Trump called Raffensperger to find 11,780 votes. As my Monthly colleague Margaret Carlson put it: “The Howard University grad is The Donald’s worst nightmare: a Black woman with a grand jury.” Pay attention to Willis. She seems to have the courage of her convictions, and not the hesitating Hamlet habit of Attorney General Garland.

Jennifer Taub

Follow Jennifer on Twitter @jentaub. Jennifer Taub, author of  Big Dirty Money: The Shocking Injustice and Unseen Cost of White Collar Crime (Viking), is a professor at the Western New England University School of Law