WASHINGTON – In the end, Merrick Garland didn’t have much of a choice.
The attorney general’s decision to appoint a special counsel to investigate the handling of classified documents found at a former office and Delaware home of President Joe Biden was characterized by a senior Justice official as a “textbook” example requiring such an action.
While weighing the matter, Garland took the step of privately assigning a preliminary review to Chicago U.S. Attorney John Lausch, Jr., a holdover from the Trump administration, who ultimately recommended the attorney general take the action announced Thursday.
To have rejected that advice, legal analysts said, would have thrust Garland and the Justice Department into a kind of firestorm the attorney general has long sought to avoid while attempting to turn the page from a turbulent era in which a president – Donald Trump – repeatedly attempted to bend the department to serve his political interests.
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“These are agonizing judgments because you never know how they are going to turn out,” said Norm Eisen, a former Obama White House counsel on ethics and government reform. “Garland’s decision was well within the range of reason, given the recommendation by Lausch and the facts of the case … It was a wise and a inevitable result.”
Andrew Weissmann, a former federal prosecutor who helped manage special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election, said the attorney general’s effort to further shield Justice from politics likely “factored” into the appointment of Rober Hur, a Trump-nominated U.S. attorney, to manage the Biden documents inquiry.
“One of the added benefits of this (appointment) is the perception of complete fairness,” Weissmann said.
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Separating Biden from Trump
Garland’s latest appointment comes less than two months after tapping longtime prosecutor Jack Smith to examine Trump’s retention of hundreds of classified documents at his Florida estate after leaving office in 2021 and the campaign to block the transfer of power to Biden.
While there are stark differences between the two document cases cases, highlighted by Trump’s repeated refusal to comply with requests for the records’ return, even the perception of a double-standard likely weighed heavily on the attorney general’s decision, analysts said.
In the Trump case, Garland’s decision to appoint Smith was triggered, in part, by the former president’s announced bid for reelection, a race that could represent a rerun of the 2020 contest with the current president, Garland’s boss.
“Based on recent developments, including 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, I have concluded that it is in the public interest to appoint a special counsel,” Garland said in November.
With Biden central to the new document investigation, Weissmann said there was “more reason” to appoint a separate special counsel.
“He didn’t have to appoint a special counsel in either case,” Weissmann said. “But I think he exercised discretion appropriately (in the Biden matter) … You are investigating you’re own executive branch.”
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Yet, there is not universal agreement a special counsel was necessary to takeover the Biden document investigation.
Harry Litman, a former deputy assistant attorney general during the Clinton administration, said a basic threshold for such an appointment had not been met.
“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,’” Litman wrote in a column for the Los Angeles Times.
“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 … Nothing we know suggests in the slightest that Biden acted intentionally in violation of the law.”
The White House has indicated that the documents were “inadvertently misplaced,” and Biden said earlier this week that he wasn’t aware of their contents, when addressing the discovery of the first set of documents recovered in November at a former Washington, D.C. office.
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“People know I take classified documents, classified information, seriously,” Biden told reporters earlier this week. “I was surprised to learn that there are any government records that were taken there to that office.
“We are cooperating fully – cooperating fully – with the review, which I hope will be finished soon,” Biden said then.
Garland’s appointment of Hur, however, all but ensures that Biden’s hope for a quick resolution is not necessarily in the offing.
Matthew Miller, a former Obama administration Justice official, said Garland’s reasoning for appointing a special counsel in the Trump case, citing a potential conflict of interest, likely limited his options while weighing the Biden matter.
“He kind of boxed himself in,” Miller said.
This article originally appeared on USA TODAY: Biden documents: Garland special counsel decision a ‘textbook’ action