Trump’s Lawyers Write Merrick Garland, Denouncing ‘Injustice’ by Special Counsel

Ex-president tries to go over the head of the special prosecutor as the prospect of an indictment is being reported by the press as near.

Justin Sullivan/Getty Images
The final presidential debate between Donald Trump and Joseph Biden at Belmont University on October 22, 2020 at Nashville. Justin Sullivan/Getty Images

A letter from President Trump’s attorneys requesting a meeting with Attorney General Garland brings into focus the decision that the nation’s chief law enforcement officer, and the current president, could soon have to make — whether to charge Mr. Trump with a federal crime for hoarding the presidency’s secrets.

In addressing himself to Mr. Garland, though, Mr. Trump and his lawyers evince an understanding of the constitutional state of play when it comes to special counsels. While they exercise autonomy in their investigations, they ultimately answer to the attorney general, who, like the special prosecutor himself and everyone else in the executive branch, serves at the president’s pleasure.     

The request, which Mr. Trump posted to Truth Social, was written by attorneys John Rowley and James Trusty. It asks for a meeting at the attorney general’s “earliest convenience” to discuss the “ongoing injustice that is being perpetrated by your Special Counsel and his prosecutors,” who have opened two separate criminal inquiries into the former president. 

The letter notes: “Unlike President Biden, his son Hunter, and the Biden family, President Trump is being treated unfairly.” It adds: “No president of the United States has ever, in the history of our country, been baselessly investigated in such an outrageous and lawful fashion.” The tone, it could be said, suggests the former president had a hand in its drafting. 

The request comes on the heels of a report in the Wall Street Journal that Mr. Smith “has all but finished obtaining testimony and other evidence in his criminal investigation” of the tranche of documents at Mar-a-Lago. The former war crimes prosecutor is now working to “tie up loose ends,” the Journal reports, and Mr. Trump’s associates are “bracing for an indictment.”

If Mr. Smith does decide to indict on this charge or one relating to the January 6, 2021, riot at the Capitol, he would first need Mr. Garland’s sign-off. Special counsel regulations written by Attorney General Reno in 1999 ordain that “ultimate responsibility” for such investigations “will continue to rest with the Attorney General.” The special counsel enjoys “day to day independence.”

Those regulations replaced the Special Prosecutor Act, a subsidiary of the Ethics in Government Act, which was passed in 1978, in the wake of Watergate. The special prosecutors — called independent counsels after 1983 — were exceedingly difficult to fire, and Congress could request that one be appointed. Justice Antonin Scalia, alone, thought them unconstitutional. 

When the act came up for renewal in 1998, both Democrats and Republicans let it lapse, a bipartisan lack of love earned from investigations into Iran-Contra, Whitewater, and White House intern Monica Lewinsky’s allegations of sexual relations with President Clinton. Mr. Smith, like Special Counsels Robert Mueller and John Durham before him, does not enjoy the unfettered freedom of these independent prosecutors.  

The current deposit of authority with the attorney general was meant to mend that previous independent counsel regime, which had accrued to itself wide-ranging and well nigh unaccountable power. Reno hoped that “long-term career Departmental officials with substantial and invaluable institutional memory and historical perspective” would curb any crusading impulses. 

As a last resort, the attorney general can conclude that an “action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued,” though if he puts the kibosh on it, he must explain the action to Congress. He can also “request that the Special Counsel provide an explanation for any investigative or prosecutorial step.”

The New York Sun

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