Why the new special counsel is actually bad news for Trump
"It confirms the seriousness of the problem Trump has," attorney David Lurie says.
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News that AG Merrick Garland appointed a special counsel to oversee the federal investigations of Donald Trump prompted criticism from some liberals who want him to do more, faster, to bring the former (and possibly future) president to justice.
To cite a few notable examples, Elie Mystal, justice correspondent for the Nation, tweeted that “the last white man to be this ineffectual with this much institutional support was Christian Laettner.” Author Sarah Kenzidor went even further, criticizing Garland as a “mafia state enabler.” Policy researcher Will Stancil implored the AG to understand that “there’s a PROBLEM to be SOLVED, and URGENTLY.” Many other examples of this line of thinking could be cited.
But David Lurie, an attorney who practices in New York and writes about the intersection of law and politics for the Daily Beast, sees things differently.
“It tells you that Trump is in the crosshairs,” Lurie told me, referring to Garland’s naming of longtime prosecutor Jack Smith as the new special counsel.
Why should we listen to Lurie? Because back in August, shortly after the FBI executed a search warrant at Mar-a-Lago, Lurie wrote a piece about the DOJ’s investigations of Trump that aged remarkably well. He predicted that Garland was “likely to appoint a special counsel” to oversee the Trump probes, but would do so after the midterms to avoid the perception he was acting politically — the exact scenario that came to pass last Friday.
While Lurie thinks the appointment of a special counsel is anything but good news for Trump, he also argued that a DOJ regulation requiring the appointment of a special counsel in certain cases in left Garland with little choice.
“We're talking about potential crimes committed by a former president who's a political opponent, and actually a candidate who might oppose Biden in the next election,” he told me. “So there's clearly a conflict of interest or the appearance of one.”
Lurie and I talked for about 25 minutes about all things related to the new special counsel, including the likelihood of an indictment while Trump is on the campaign trail.
A transcript of our conversation, lightly edited for length and clarity, follows.
What do you think the appointment of a special counsel says about where the DOJ’s investigations of Trump are and where they’re going?
First of all, it confirms the seriousness of the problem that Trump has because this is not a step that the DOJ takes lightly. Secondly, Jack Smith is one of the most experienced corruption prosecutors at the DOJ. Most recently he was a war crimes prosecutor in The Hague. Among other things, he oversaw the prosecutions of the former governor of Virginia and of former New York Assembly Speaker Sheldon Silver, who was probably the most powerful politician in the state. So it tells you that Trump is in the crosshairs.
Do you think Smith’s appointment makes it more or less likely that Trump will be indicted?
The naming of the special counsel only occurs where there are substantial questions as to the existence of a basis to prosecute. Usually it occurs much earlier in the investigative process. In this case, the investigation has been going on essentially since Biden took office in January 2021. So the decision to name the special counsel was made on the basis of a very substantial evidentiary record.
From that, I gather that there must be a substantial basis to consider an indictment against Trump. By contrast, just taking the the example of a special counsel that's most familiar to people, Robert Mueller — Mueller was named before much of the investigation had occurred. He was named in the wake of the firing of James Comey because the conflict of interest was so grave arising from that move that the deputy attorney general concluded there was no choice in the matter. But at that point, the evidentiary record had not been substantially developed, and it took Mueller a period of years to complete that process.
So the long and short of it is, I think we can conclude from the naming of the special counsel in this case that there's a very substantial basis that Trump will be indicted.
Why from DOJ’s standpoint is it important to have a special counsel overseeing this?
In the wake of Congress allowing the independent counsel law to expire in 1999, the DOJ promulgated a special counsel regulation, still in effect now, that essentially calls for an office similar to the one that was in place during Watergate and used to investigate Nixon.
Special counsels are not independent. They're not appointed by a court. They're appointed by the attorney general, and their power to make prosecutorial decisions ultimately derives from the attorney general. They could be fired just like the Watergate special prosecutor was fired by the attorney general. But that does not mean that it is pointless, as some has suggested, for an attorney general to name a special counsel.
A special counsel is functionally far more independent than a DOJ prosecutor or a US attorney appointed by the president. Presumptively, the attorney general will defer to the special counsel's recommendations and determination, and it's that appearance and reality of distance from the attorney general that gives the special counsel a special type of status.
The regulation calls for two judgments to be made by the attorney general when considering whether to name a special counsel. The first is whether there is in fact a conflict of interest for the attorney general, deriving from the nature of the potential defendant and the potential crime. Obviously that's the case here. We're talking about potential crimes committed by a former president who's a political opponent, and actually a candidate who might oppose Biden in the next election. So there's clearly a conflict of interest or the appearance of one.
The next question is whether it's in the public interest to name a special counsel. That's designed to give the attorney general some leeway to make the judgment. Many people have argued that it's not in the public interest to name a special counsel under these circumstances. I argue that it obviously is in the public interest simply because of the conflict of interest. There's just no way to avoid the allegation that any judgment the attorney general would himself make without the mediation of the special counsel as to whether to charge Trump committed crimes involves a conflict because of Trump’s status as a candidate.
Attorney General Garland made the judgment that there is a conflict and that it is in the public interest to name a special counsel. I think it's pretty hard to argue with either of those conclusions.
If Trump is indicted, could he continue campaigning?
If Trump is indicted, it's of course going to impair his ability to run for president.
He can run for president if he's indicted, but he's gonna be a defendant in one or very possibly multiple very serious criminal cases. Those criminal cases aren't going to stop because he is running for president, despite what Trump may think.
Obviously Trump will argue that he should obtain a stay because he's running for president, but I think the argument for that is exceedingly weak. If that argument was accepted, then every criminal defendant would simply declare that they are a candidate for political office and delay their prosecution.