Merrick Garland Misses the TargetBy P. Michael McKinley - November 23, 2022
Almost
1,000 people have been charged in connection with the Jan. 6, 2021,
Capitol insurrection; criminal and civil investigations are underway in
Georgia and New York on allegations of election tampering and tax fraud;
sitting U.S. senators, senior Trump White House aides and Trump
Organization officials are being compelled to testify by the Department
of Justice, state prosecutors and the Supreme Court; and an ongoing FBI
investigation has concluded that top secret and compartmentalized
intelligence papers were removed from the White House to Mar-a-Lago.
But
on Nov. 18, by appointing a special counsel to take over the Jan. 6 and
Mar-a-Lago investigations, Attorney General Merrick Garland effectively
passed on his responsibility to decide whether the person at the center
of all of these investigations, former President Trump, should be
prosecuted. Garland’s nomination of a special counsel was said to be
necessary because the “Department of Justice has long recognized that in
certain extraordinary cases, it is in the public interest to appoint a
special prosecutor to independently manage an investigation and
prosecution.”
In plain language: Trump’s announcement of a 2024
presidential campaign apparently justified the decision to protect the
Department of Justice (DOJ) from accusations of politicization by
appointing an independent counsel. The rationale is scarcely credible in
today’s polarized climate. Sen. Ted Cruz (R-Texas) already has launched
the first of what is sure to be a chorus of criticisms that the DOJ is,
in fact, being weaponized.
No amount of sophistry — what exactly
are “extraordinary circumstances” and who decides the “public
interest”? — or highlighting special counsel Jack Smith’s merits can
mask Garland’s abdication of responsibility. Garland has no difficulty
throwing the proverbial book at Oath Keepers or pressuring lower-level
employees at Trump’s Mar-a-Lago resort to cooperate; but the person who
is said to have inspired them, who participated in calls to overturn
votes at state level, and who promoted the rejection of the legitimacy
of an American presidential election — well, charging him is clearly a
different question.
It really is hard to underestimate the
potentially negative impact that Garland’s decision could have on the
timeline of concluding the multiple investigations into Trump’s actions.
The DOJ would not charge him, if warranted, until a special counsel
completes a separate investigation — which could be years from now,
potentially after Trump’s third run at the presidency, and when there is
a new attorney general who reviews the findings.
Garland’s and
Smith’s assurances that a special counsel will not slow the
investigations and that they are well advanced may be the case, but
these assurances are belied by the experience of previous multi-year
special counsel investigations, from Iran-Contra to Whitewater to
Russian interference in the 2016 election. There are complications
related to the Trump investigation, not least his status as a former
president. The incoming Republican-led House of Representatives may
launch investigations into the Biden administration, muddying the waters
further.
As a former ambassador who spent most of my 37 years in
the State Department handling top secret and compartmentalized
information, I find it particularly jarring to see the ongoing debate
over whether Trump’s handling of classified documents could be
prosecuted successfully. It is remarkable, for example, that
investigators are somehow rationalizing the transfer of the material to
Mar-a-Lago as Trump’s “desire to hold on to the materials as trophies or
mementos” — seemingly making an allowance for a former president that
never would be made for another person.
It should not be this
difficult to determine there was a breach of national security at
Mar-a-Lago, whatever the motivation. The documents marked “top secret”
are known to have included some of the nation’s most sensitive
information. If a civil servant working at the security or foreign
policy agencies had taken home troves of top-secret documents for
personal use and kept them over an extended period, they likely would
have been arrested and charged from the moment it was discovered they
had done so.
There is no exemption for former cabinet
secretaries, high-ranking officials or presidents to remove classified
documents and store them at unsecured and unauthorized locations. The
fact that an incumbent president is not required to have clearance while
in office — and can decide declassification of sensitive information —
does not mean that the same access or discretion applies in retirement. The
key clause of the Presidential Records Act “establishes that
Presidential records automatically transfer into the legal custody of
the Archivist as soon as the President leaves office.”
Further,
under federal regulations (31 CFR §2.2), if former officials at this
level decide to write memoirs about their time in office and want to use
records related to that period, they must make formal requests to
access the documents and, should they choose to disclose the
information, receive formal approval after a review to do so.
The
former president’s legal team may have engaged in dilatory tactics that
slowed efforts to establish what happened to the missing documents, and
there may be an institutional culture at the FBI that is slowing the
Jan. 6 investigations more generally, as has been suggested. But the
fact is that the National Archives and Department of Justice took more
than 15 months to retrieve classified documentation that was always the
exclusive property of the federal government. The search continues as we
approach the two-year mark of Trump’s leaving office.
Garland’s
maxims that “no person is above the law” and that “we will follow the
facts, wherever they lead” ring hollow. With the naming of Smith as
special counsel, progress on the Mar-a-Lago investigation will be tied
to the fate of the more consequential — but also more complicated — Jan.
6 investigation into the assault on American democracy. There should
have been no equivocation about protecting the nation’s secrets and, by
injecting a special counsel, Garland is doing exactly what he sought to
avoid: allowing politics and the electoral calendar to dictate how
justice is carried out in this nation.