Merrick Garland is outmaneuvered because he has outmaneuvered himself. The facts were uncomplicated, and the law was clear. The attorney general had the goods on Donald Trump after the August search and seizure of unauthorized documents at Mar-a-Lago, the former president’s Florida home and resort. As soon as the ultra-conservative Eleventh Circuit Court of Appeals unanimously affirmed the Justice Department’s search warrant on December 1, Garland could have indicted the former president. The feds had the documents and solid evidence that Trump had thumbed his nose at efforts to get him to return them. Garland knew the volume of documents at Trump’s residence and the classification level. There was no arguing with the obstruction of justice attempted by Trump and his attorneys.
But Garland also knew what we didn’t: A few weeks earlier, Joe Biden’s lawyers had uncovered a file of government documents, some of them classified, at the Washington office Biden had used for his work with the Penn Biden Center, the think tank he founded after he served as vice president. Even if the attorney general had allowed for the possibility that Biden might have more government documents elsewhere, Garland could easily have distinguished the two cases and moved forward with a Trump prosecution. The cases were not comparable because of the scale of the documents that Trump moved from the White House to Mar-a-Lago, and the corrupt conduct Trump engaged in when asked to return them. Contrast that with the paucity of documents in Biden’s possession and his cooperation with investigators. To confirm our suspicions that he wears suspenders and a belt, Garland appointed the U.S. attorney in Chicago, John Lausch, a Trump appointee, to review the Biden matter.
Shifting to the Trump burner, Garland was itching to shed the case, so he dithered until November 18, appointing a special counsel to “oversee” what he referred to euphemistically as the “ongoing investigation involving classified documents and other presidential records, as well as the possible obstruction of that investigation, referenced and described in court filings submitted in a pending matter in the Southern District of Florida.” Garland declared that Trump’s entry into the 2024 presidential race compelled the appointment of a special counsel. Jack Smith, the former chief prosecutor at The Hague, was put in charge of investigating the events of January 6, and the Mar-a-Lago documents. Pretty full plate there.
The office of special counsel is a creature of Justice Department regulations. “The Attorney General …will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted.” The special counsel is supposed to have “independent authority to exercise all investigative and prosecutorial functions” of the department and is not subject to the “day-to-day supervision” of anyone in the department, including the attorney general. Garland can only reverse or modify the special counsel’s actions if they are “so inappropriate or unwarranted that [they] should not be pursued.” Bill Barr felt he could apply a lesser standard in overruling Bob Mueller. Still, it is highly unlikely that Garland would interfere with Smith’s charging decisions in these legally and politically laced circumstances.
On November 18, Garland knew that the Biden papers were out there. He should have known that the appointment of a special counsel to oversee the seemingly parallel investigation of the Biden papers would heighten rather than reduce the appearance of unequal treatment if Smith decided to indict Trump on Mar-a-Lago, and the Justice Department chose not to indict Biden.
January 12 was an eventful day. Garland appointed another special counsel, Robert Hur, a Baltimore-based U.S. attorney in the Trump administration, to oversee the investigation of the Biden documents. How many lawyers does it take to change a light bulb? The same day, Biden’s lawyers revealed to the Department of Justice that they had found six more pages of classified documents during a search of Biden’s private library.
Now, at this point, based on what has been publicly reported—although we think the Mar-a-Lago case fairly shrieks indictment—we do not know if the two investigations, while superficially symmetrical, are even remotely comparable. Biden has treated us to piecemeal discovery. We don’t know the overall volume of classified documents or the classification level. We don’t know whether the key documents were stored under lock and key or available to anyone. We also don’t know which documents relate to the time Biden was chair of the Senate Foreign Relations Committee, the time he was vice president, or the time that he has been President. Biden entered the Senate in January 1973, so, for all we know, there are papers relating to Salvador Allende and Golda Meir.
Are the two cases distinguishable? Barbara McQuade, a former Obama-appointed U.S. Attorney in Michigan, tweets: “The idea that documents found at Biden‘s home affects the Trump case is hogwash. Each case will stand on its own facts. If both committed crimes, both should be charged. But so far, only one appears to have acted willfully and to have obstructed justice.”
The Biden situation could be an honest mistake. We just don’t know. And at this point, McQuade doesn’t know either. But Garland, who has all the documents, does know.
However the facts fall, Garland may have dug a hole for himself, courted further delay, and dealt a lethal blow to the ideal of principled non-partisan justice.
As Jack Goldsmith, the Harvard Law School professor and former Justice Department official, points out, this dual special counsel structure was never conceived at the time of the Justice Department regulations. There is no regulatory provision for harmonizing the two reports to ensure that the same principles have been evenly applied to both cases. Goldsmith writes in The New York Times that “[e]ven if the Trump and Biden investigations turn out to be factually and legally quite different, as it seems they might, the dual Special Counsel structure will make it hard for the department to portray its decisions as principled.” Indeed, now the National Archives has reached out to all living former presidents and vice presidents to search for unauthorized documents. If papers turn up, will Garland need special counsels for Jimmy Carter, Dan Quayle, Bill Clinton, Al Gore, George W. Bush, Dick Cheney, and Barack Obama if they have unauthorized documents? Of course not. But by what principle?
Getting back to Biden and Trump, if Garland takes steps to harmonize the conclusions of the two investigations, it may completely erase the appearance and reality of independence. What if one counsel issues a report and the other a one-sentence statement?
The problem is not legal but political, a field in which Garland, a distinguished jurist and prosecutor, has less than stellar instincts. The political futures of both Trump, if he is nominated, and Biden, if he runs, may be (with apologies to Henry Wadsworth Longfellow) “hanging breathless” on how this plays out.