Opinion: Special counsel on Trump won’t calm the political waters

Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of clinical law at New York University School of Law, lecturer-in-law at Columbia Law School and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.

CNN
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Rumors had been swirling for weeks that US Attorney General Merrick Garland was considering appointing a special counsel to investigate former President Donald Trump. On Friday he did so, announcing that former Justice Department prosecutor Jack Smith would return to government to handle two investigations: The examination of classified and other presidential documents found in Trump’s possession at his property in Mar-a-Lago; and the probe into those who potentially illegally interfered with the transfer of presidential power and/or with the certification of the 2020 election results.

In his announcement, Garland cited the “extraordinary circumstances” at play, noting specifically that now that Trump has announced his candidacy for 2024, appointing a special counsel, who, pursuant to the applicable regulations, has a measure of independence from President Joe Biden’s DOJ, was the right thing to do.

When the issue of appointing a special counsel first arose, I was not in favor. I felt that a special counsel would delay things, and that there would be only a minimal, if any, benefit from the perception of independence from the DOJ that a special counsel brings. My feeling was that the costs in terms of delay were not outweighed by any benefit the appointment would bring in terms of the limited independence and resulting perception of fairness a special counsel brings to the table. I continue to think that the appointment was not legally necessary.

But I will say this for Garland: He has, from day one, proceeded very cautiously in this investigation (some say too cautiously) and has shown great deference to the former president in carrying out investigative steps like the Mar-a-Lago search back in August, presumably because he recognized that the investigation’s legitimacy in the eyes of many Americans could hinge on whether the DOJ was perceived to be acting aggressively, rashly, or politically as it investigated the former president. The appointment of a special counsel, therefore, is in line with Garland’s longstanding approach, and assuming it doesn’t lead to a lengthy delay, may be the right call.

In any event, the deed is done. The new special counsel’s credentials for the post are excellent: Smith is a highly experienced career prosecutor, having served as both a federal and state prosecutor in New York, as the chief of the Public Integrity Section at the DOJ, as an acting US attorney in Tennessee, and as a war crimes prosecutor at The Hague.

Smith is intimately familiar with elections law and classified documents cases. And he has never been an elected official or even a political appointee, so he has no evident political biases. These facts will not insulate him from Trump’s claims that the investigation is politically motivated; indeed, those have already begun. But Garland’s actions suggest that he hopes the appointment will appeal to reasonable people who might be persuaded that an apolitical outsider, acting independently as far as day-to-day decisions go, and transparently in terms of ultimate charging decisions that are overseen by Garland, is a fair compromise, because the alternative – that Trump is effectively above the law – is anathema to our system of justice.

So what is the upshot of the appointment of a special counsel?

First, we shouldn’t expect the investigations to be wrapped up in the immediate future. The special counsel will need to get up to speed. In the documents case, there may be additional investigative steps he will want to take before considering charges. In particular, I noted that Garland emphasized that the ongoing investigation involves possible obstruction of justice as it relates to the documents case. Fleshing this out may result in a relatively clean and easy charge for Smith to pursue, if the evidence collected from witnesses supports it, as some reports suggest.

In the interference case, there certainly remains much work to be done, as witnesses continue to testify in the grand jury after many months of fighting their subpoenas in court.

One problem is, while both Smith and Garland have made statements suggesting that there will be no delay, time is short. Criminal cases can make their way to trial within a year, but in a case involving a former president, we can expect significant litigation, including on issues for which there is no legal precedent, which will take longer to resolve. It is my view that to have a chance of resolving the case before the 60-90 days ahead of the 2024 election – when the DOJ traditionally avoids actions that could impact elections – it would need to be charged by spring 2023 at the latest.

I think this may very well turn out to be a case of “be careful what you wish for.” Because while Trump reportedly announced his candidacy early in part to try to inoculate himself against indictment by emphasizing the alleged DOJ conflict in investigating him, he may have just made an indictment much more likely. Of course, we don’t know what the special counsel will do here, and I don’t know Smith personally. But I do know this: The job of a career prosecutor like Smith is to make cases. And just like there would be no reason to appoint a special counsel to wind down an investigation, there is no reason for Smith to accept the job unless he intends to try to make one or more chargeable cases.

The attorney general, in addition to heading up these investigations, has had a lot of other things on his plate. Special Counsel Smith’s remit will be much more focused. He just has to be a prosecutor. He has to oversee his team in finding the evidence and making the case. And he will not be distracted by a thousand other cases and concerns while he does so. I’m not saying it’s easy, but it is a more single-minded mission, for someone who is, according to his resume and what his former colleagues are saying about him, an excellent lawyer and aggressive case-maker. These early months of the former president’s campaign may end up being more eventful than he, or any of us, expected.