“Cowardly”: Legal experts slam Garland for punting to special counsel after Trump announcement

Attorney General Merrick Garland is set to appoint a special counsel to determine whether to prosecute former President Donald Trump, according to multiple reports.

Garland is set to announce the special counsel on Friday, three days after Trump announced his presidential bid, The Wall Street Journal reported. Trump reportedly announced his run so early because he believed it would make it harder for the Justice Department to prosecute him without it seeming political.

Garland’s move reflects the sensitivity of the DOJ’s probes into the former president and appears to be an attempt to allay concerns that the investigation is political. The Justice Department is probing Trump’s retention of national security documents at his Mar-a-Lago residence as well as his role in the Jan. 6 Capitol riot.

DOJ rules for appointing a special counsel allow the attorney general to “name an outsider if he determines that the investigation or prosecution presents a conflict of interest for the department and recusals of certain officials wouldn’t be enough to overcome the concerns,” the Journal reported. But some former DOJ officials have said the appointment would not to much to diminish criticism from Trump and his supporters, particularly since Garland and other DOJ officials are still likely to be involved in decision-making related to the investigation.

Some legal experts knocked the decision to punt the Trump-related cases to a special counsel.

“It’s a waste of time and money, insults the prosecutors at DOJ and gains nothing,” tweeted former Watergate prosecutor Jill Wine-Banks. “No Trump supporter will see anyone as independent or fair to Trump.”

National security attorney Bradley Moss also criticized the move, warning it “will now definitely delay any decisions until January at the earliest.”

“Ironically, by announcing a Special Counsel this late in the game Garland just made it more likely that any potential prosecution of Trump will bleed into the 2024 general election season,” he tweeted.

Slate legal analyst Jeremy Stahl said Garland’s announcement gave Trump “exactly what he hoped for by announcing so early.”

“It’s cowardly, and it could backfire spectacularly,” he wrote.

---

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

---

But some legal experts pushed back, arguing it was the right call and is unlikely to significantly delay the investigations.

“A special counsel offers some measure of independence and transparency, which is a good thing,” wrote former federal prosecutor Renato Mariotti. “The investigation is far along, and the same FBI agents can work for the special counsel,” he added. “the appointment will slow things down by weeks, not months, if at all.”

It’s unclear who Garland will appoint and whether any prosecutor would be accepted by Trump’s supporters on the right. Still, wrote Cal-Berkeley Law Prof. Orin Kerr, “it will be Trump’s second stumbling his way into a special counsel appointment, which is something.”

Criticism of Garland’s handling of the cases has stretched all the way to the White House, including privately by President Joe Biden. Though the president has not expressed his frustrations to Garland, he has vented to his inner circle that Trump is a “threat to democracy and should be prosecuted,” The New York Times reported in April, and that he wanted Garland to “act less like a ponderous judge and more like a prosecutor who is willing to take decisive action.”