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In naming a special counsel to investigate the presence of classified documents at President Joe Biden’s Delaware home and former Washington office, Attorney General Merrick Garland described the appointment as underscoring the Justice Department’s commitment to independence and accountability in particularly sensitive investigations.
If those words sounded familiar, they should.
Garland used identical phrasing in November in appointing a different special counsel for a different politically explosive investigation into different classified documents for a different political figure – the retention of top secret records at former President Donald Trump’s Florida estate, Mar-a-Lago.
The Justice Department has investigated White House matters in the past. But it’s now confronting a unique phenomenon: simultaneous special counsel probes – albeit with dramatically distinct fact sets – involving two presidents and jostling for time, attention and perhaps funding as well. Still another special counsel appointed during the Trump administration to investigate the origins of the FBI’s Trump-Russia probe also remains at work.
The special counsel confluence underscores how a Justice Department that for nearly two centuries has had a mandate of prosecuting without fear or favor has found itself entangled in presidential politics. Even as Garland made a point Thursday of saying the department’s own “normal processes” can handle all investigations with integrity, the appointment seemed to nod to a reality that probes that involve a president – in this case, Garland’s boss – are different.
It places Garland under pressure to reassure the public that both investigations, though factually different, are handled in similar manners.
“I think it’s not only the right decision and a prudent decision, I think it’s a politically necessary decision,” said Solomon Wisenberg, who served as deputy to Kenneth Starr during the 1990s independent counsel investigations into then-President Bill Clinton.
“Why,” he added, “give yourself the grief of the comparison of the two situations” of a special counsel for Trump, a Republican, but not for Biden, a Democrat.
Brandon Van Grack, a former Justice Department prosecutor who served on then-special counsel Robert Mueller’s team as it investigated ties between Russia and Trump’s 2016 presidential campaign, said appointing a special counsel can help expedite an investigation, ensure it has appropriate resources and create “at least the perception of impartiality and fairness.
