Merrick Garland’s appointment of special counsel Robert Hur, Maryland’s former U.S. attorney, to investigate the burgeoning President Joe Biden documents problem tells us something new about the attorney general.
Notwithstanding his image as a “just the facts and law” prosecutor, Garland, it appears, may factor into key high-profile decisions, political considerations and the importance of public confidence in the Justice Department’s evenhandedness.
No surprise, one might say. But until now, Garland has maintained and burnished a reputation as a wholeheartedly apolitical attorney general, indifferent to the consequences of his actions on the other branches and the public.
Indeed, even as he turned over to Jack Smith the oversight role in the Justice Department’s investigations of former President Donald Trump, Garland pointedly invoked the letter of the law, the “extraordinary circumstances” that required the appointment of a special counsel.
As the Biden documents surfaced — a small number, including classified documents, found in two places — the near-unanimous assessment of commentators has been that Garland had “no choice” but to appoint a special counsel in the matter.
But that’s not what the law says. The Justice Department regulation calls for a special counsel to be appointed only “when the attorney general determines that a criminal investigation of a person or matter is warranted” and that “the investigation … would present a conflict of interest for the department, or other extraordinary circumstances.”
The key determination, then, is that a criminal investigation is warranted. Based on what we know to date — and it’s possible the Justice Department’s preliminary investigation turned up facts related to the Biden documents that are as yet unreported — there’s simply no legal basis to conclude that a criminal investigation is warranted.
As we’ve learned again and again over the Trump years, the linchpin of most crimes, including document-based ones, is intent. Trump is in document hot water, and deservedly, because the evidence suggests strongly that he knowingly and intentionally took government documents that should have been turned over to the National Archives, and then spearheaded multiple rounds of resistance and lying to the authorities that wanted them back.
By contrast, nothing we know suggests in the slightest that Biden acted intentionally in violation of the law. The record is bare of any indication that the president even knew the documents had left the White House.
Don’t get me wrong. The discovery of not one but two sets of government material in an office Biden used in Washington and at his Delaware residence certainly is cause for concern. It is most obviously a political headache that is now reaching migraine proportions. It also raises questions: How often do presidents and vice presidents leave office with classified documents? How are such documents accounted for, and how should those methods be tightened?
And the situation cries out for an investigation into how and why the documents weren’t handed over to the archives when Biden left office as vice president.
But what it doesn’t cry out for is a criminal investigation. (One politically useful aspect of Hur’s appointment is the likelihood that he will determine that and put an end to the president’s problem.)
It is without doubt understandable why Garland appointed Hur. A special counsel in charge of the investigation takes away a club that the Republican House majority has already begun using to beat up on Garland, the Justice Department and the president. No matter what Hur finds, the peanut gallery will continue to shout and clamor. But the appointment of Hur — a a former clerk to late Supreme Court Chief Justice William H. Rehnquist and a current partner at Gibson Dunn — should reassure the public that any decision in the case is not political.
In fact, it may be welcome news to the White House, which can more staunchly defend itself by arguing that the investigation is on the up and up, and point repeatedly down the street to the Justice Department.
But all that’s a matter of politics and appearances, not the letter of the law, supposedly Garland’s north star.
In public forums and in legal circles, there has been an on going debate about what role politics and public opinion could play in Garland’s decisions related to the Justice Department’s investigation of Trump’s Jan. 6 actions and the White House documents he repeatedly refused to turn over to the National Archives.
I think we have an answer.
Garland’s decision to appoint a special counsel in the Biden documents case displays a Washingtonian’s situational awareness and an acknowledgment of nuanced political concerns. Not bad qualities for the head of a government agency, but a new gloss on the character of the most important attorney general since Watergate.
Harry Litman (Twitter: @HarryLitman) is a former U.S. attorney and deputy assistant attorney general. He is the legal affairs columnist for the Los Angeles Times, where this piece originally appeared.