Merrick Garland misses the target

Almost 1,000 people have been charged in connection with the Jan. 6, 2021, Capitol insurrection; criminal and civil investigations are underway in Georgia and New York on allegations of election tampering and tax fraud; sitting U.S. senators, senior Trump White House aides and Trump Organization officials are being compelled to testify by the Department of Justice, state prosecutors and the Supreme Court; and an ongoing FBI investigation has concluded that top secret and compartmentalized intelligence papers were removed from the White House to Mar-a-Lago.

But on Nov. 18, by appointing a special counsel to take over the Jan. 6 and Mar-a-Lago investigations, Attorney General Merrick Garland effectively passed on his responsibility to decide whether the person at the center of all of these investigations, former President Trump, should be prosecuted. Garland’s nomination of a special counsel was said to be necessary because the “Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.” 

In plain language: Trump’s announcement of a 2024 presidential campaign apparently justified the decision to protect the Department of Justice (DOJ) from accusations of politicization by appointing an independent counsel. The rationale is scarcely credible in today’s polarized climate. Sen. Ted Cruz (R-Texas) already has launched the first of what is sure to be a chorus of criticisms that the DOJ is, in fact, being weaponized.

No amount of sophistry — what exactly are “extraordinary circumstances” and who decides the “public interest”? — or highlighting special counsel Jack Smith’s merits can mask Garland’s abdication of responsibility. Garland has no difficulty throwing the proverbial book at Oath Keepers or pressuring lower-level employees at Trump’s Mar-a-Lago resort to cooperate; but the person who is said to have inspired them, who participated in calls to overturn votes at state level, and who promoted the rejection of the legitimacy of an American presidential election — well, charging him is clearly a different question.  

It really is hard to underestimate the potentially negative impact that Garland’s decision could have on the timeline of concluding the multiple investigations into Trump’s actions. The DOJ would not charge him, if warranted, until a special counsel completes a separate investigation — which could be years from now, potentially after Trump’s third run at the presidency, and when there is a new attorney general who reviews the findings.

Garland’s and Smith’s assurances that a special counsel will not slow the investigations and that they are well advanced may be the case, but these assurances are belied by the experience of previous multi-year special counsel investigations, from Iran-Contra to Whitewater to Russian interference in the 2016 election. There are complications related to the Trump investigation, not least his status as a former president. The incoming Republican-led House of Representatives may launch investigations into the Biden administration, muddying the waters further.

As a former ambassador who spent most of my 37 years in the State Department handling top secret and compartmentalized information, I find it particularly jarring to see the ongoing debate over whether Trump’s handling of classified documents could be prosecuted successfully. It is remarkable, for example, that investigators are somehow rationalizing the transfer of the material to Mar-a-Lago as Trump’s “desire to hold on to the materials as trophies or mementos” — seemingly making an allowance for a former president that never would be made for another person.  

It should not be this difficult to determine there was a breach of national security at Mar-a-Lago, whatever the motivation. The documents marked “top secret” are known to have included some of the nation’s most sensitive information. If a civil servant working at the security or foreign policy agencies had taken home troves of top-secret documents for personal use and kept them over an extended period, they likely would have been arrested and charged from the moment it was discovered they had done so.

There is no exemption for former cabinet secretaries, high-ranking officials or presidents to remove classified documents and store them at unsecured and unauthorized locations. The fact that an incumbent president is not required to have clearance while in office — and can decide declassification of sensitive information — does not mean that same access or discretion applies in retirement. The key clause of the Presidential Records Act “establishes that Presidential records automatically transfer into the legal custody of the Archivist as soon as the President leaves office.” 

Further, under federal regulations (31 CFR §2.2), if former officials at this level decide to write memoirs about their time in office and want to use records related to that period, they must make formal requests to access the documents and, should they choose to disclose the information, receive formal approval after a review to do so. 

The former president’s legal team may have engaged in dilatory tactics that slowed efforts to establish what happened to the missing documents, and there may be an institutional culture at the FBI that is slowing the Jan. 6 investigations more generally, as has been suggested. But the fact is that the National Archives and Department of Justice took more than 15 months to retrieve classified documentation that was always the exclusive property of the federal government. The search continues as we approach the two-year mark of Trump’s leaving office.

Garland’s maxims that “no person is above the law” and that “we will follow the facts, wherever they lead” ring hollow. With the naming of Smith as special counsel, progress on the Mar-a-Lago investigation will be tied to the fate of the more consequential — but also more complicated — Jan. 6 investigation into the assault on American democracy. There should have been no equivocation about protecting the nation’s secrets and, by injecting a special counsel, Garland is doing exactly what he sought to avoid: allowing politics and the electoral calendar to dictate how justice is carried out in this nation.

P. Michael McKinley is a nonresident senior adviser at the Center for Strategic and International Studies. During his 37-year career in the U.S. Foreign Service, he held senior leadership positions in missions in Latin America, Europe, Africa, and South Asia and was a four-time ambassador, serving in Peru (2007-2010), Colombia (2010-2013), Afghanistan (2014-2016) and Brazil (2017-2018).