Attorney General Merrick Garland’s appointment of a special counsel to take over investigations of Donald Trump’s interference with the lawful transfer of power following the 2020 presidential election and his subsequent theft of national security documents is another misguided gesture to appease Trump apologists who will accuse Garland of engaging in a political persecution no matter what he does. As demonstrated by the reactions to every move of the last Trump-inspired special counsel — the apolitical, Republican-appointed, and life-long Republican, Robert Mueller — the appointment of a special counsel will do nothing whatsoever to insulate these investigations and any resulting-prosecutions from relentless political attacks from Donald Trump and his allies. Instead, the move is more likely to provide further opportunities for delay and potential derailment of the investigations than to finally hold Donald Trump accountable.  

Indeed, besides the obvious concerns of delay, Garland’s order also conveys a dangerous message not yet widely discussed: he has implicitly announced that the Department of Justice is abandoning any prosecution of Donald Trump’s obstruction of justice crimes identified in the Mueller report or any prosecution of Trump for directing the criminal conspiracy to defraud the United States despite being named by federal prosecutors as “Individual-1” in the 2018 charges against his former personal lawyer Michael Cohen — a felony charge to which Cohen pleaded guilty and was sentenced to three years’ imprisonment.

Trump’s pre-2020 crimes that the Department of Justice has already investigated

As we reminded Garland on November 17, 2022, the Mueller report found “substantial evidence” that President Trump attempted to obstruct the investigation into Russia’s election interference in 2016 and coordination with the Trump campaign. Examples include firing former FBI Director James Comey, attempting to fire Mueller and curtail the investigation, and encouraging his associates not to cooperate with the government. In declining to prosecute Trump for these crimes, Mueller relied on a controversial Department policy that a sitting president cannot be charged with a federal crime while in office. But as Mueller himself noted, that policy does not apply after the president leaves office and Trump may now be prosecuted for the obstruction of justice offenses identified in Mueller’s report. 

The Mueller report also found evidence of numerous links and communications between the Trump campaign and the Russian government, but found there was not sufficient evidence to establish a criminal conspiracy, in part because Trump insiders like Paul Manafort refused to truthfully cooperate and instead provided the investigators with false information. That Trump and his allies successfully obstructed the last special counsel investigation is another reason Garland should have been wary of another special counsel appointment.     

Likewise, in 2018 the Department of Justice charged Michael Cohen, Trump’s former personal lawyer, with campaign finance crimes carried out to benefit “Individual-1,” who by January 2017 “had become the President of the United States.” As explained in the criminal information, Cohen arranged for payments to two former Trump mistresses to buy their silence for the purpose of influencing the 2016 election, in violation of the Federal Election Campaign Act. Cohen later added in his guilty plea colloquy that he arranged these payments “at the request of the candidate.” To eliminate any doubt, in his sworn testimony before Congress, he emphasized that these crimes were committed “for the benefit of, at the direction of, and in coordination with individual No. 1. And for the record, individual No. 1 is President Donald J. Trump.” Cohen was sentenced to three years imprisonment, served time in federal prison, and is still on supervised release—for felonies he committed “at the direction of, and in coordination with … Donald J. Trump.” Trump, who continued to deny and conceal evidence of the scheme long after it was first revealed, may now be prosecuted for his role in the same crimes for which Cohen served prison time.

Garland’s abandonment of the Department’s work

In explaining why he appointed a special counsel, Garland cited not the particular nature of the crimes at issue, but rather “the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well,” as motivating his conclusion “that it is in the public interest to appoint a Special Counsel.”

Yet Garland’s appointment order makes no mention of the obstruction of justice crimes that the last special counsel investigating Trump already identified, nor of Trump’s crimes identified by federal prosecutors in their 2018 charges against Michael Cohen. His order’s scope is expressly limited to “efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021,” “the ongoing investigation referenced and described in the United States’ Response to Motion for Judicial Oversight and Additional Relief, Donald J Trump v. United States,” and matters arising from these investigations. 

In short, by announcing a special counsel appointment predicated on Trump’s candidacy, then excluding from the special counsel’s scope the “shelf-ready” obstruction of justice crimes already identified by Special Counsel Mueller and the crimes identified by federal prosecutors in their 2018 charges against Michael Cohen, Garland has signaled that he has determined that none of the other crimes committed by Trump are even worth of being considered for prosecution — not those painstakingly investigated and documented by the last Special Counsel with a roadmap for indictment; nor those which Trump’s own Justice Department deemed so serious that it sent Cohen to prison for carrying them out at Trump’s direction and on his behalf. 

Through this limited appointment, Merrick Garland has given Trump blanket immunity for federal crimes that the Department has already identified that Trump committed during the 2016 election and throughout the majority of his corrupt presidency. 

We hope that Trump will be held accountable, in a timely fashion, for the crimes within the Special Counsel’s scope. But Garland’s absolution of Trump’s earlier crimes — and unwillingness to even state openly, let alone provide a rationale, that he was doing so — cannot be justified.