Congratulations, Joe Biden — your scandal has officially become a “big f*****g deal,” to quote you directly. After getting what turned out to be three separate notices that Biden had illegally retained and improperly stored classified information for six years, Attorney General Merrick Garland finally had enough. Garland announced minutes earlier that he has appointed a special counsel for a deeper investigation — matching up with the same step he took a month ago for a probe into Donald Trump’s alleged violations of federal law on classified material:
— ABC News (@ABC) January 12, 2023
The timeline changed today, too. At first, all we knew is that the Penn Center documents were discovered on November 2, and the Biden claim that his team checked his other locations immediately afterward. If so, they took their time; the DoJ didn’t get informed about Biden’s garage documents until December 20, according to Garland, and then had to update that last week to include the classified document found in “an adjacent room.” Not only does that sound much less organized, it leaves the impression that there may still be more to find, too.
Up until now, Garland had assigned US Attorney John Lausch, a Trump appointee but mainly a career federal prosecutor, to handle this as a normal DoJ investigation. Garland sounded as though he would have preferred to keep Lausch in place, but Lausch recommended the appointment of a special counsel after the second and third discoveries.
Instead, Garland has appointed Robert Hur as a formal special counsel, emphasizing that the former US Attorney would not work within the supervisory structure of the DoJ. Hur is also a Trump-era appointee, the NY Times notes:
Mr. Hur, who previously served as the U.S. attorney for Maryland during the Trump administration, is responsible for investigating “the possible unauthorized removal and retention of classified documents or other records discovered” at the office of Mr. Biden’s think tank in Washington and his residence in Wilmington, Del., according to the order signed by Mr. Garland on Thursday.
Mr. Hur, who also served as a top department official in the deputy attorney general’s office in 2017 and 2018, is authorized to prosecute any crimes arising from the inquiry or to refer matters for prosecution by federal attorneys in other jurisdictions, the order said. …
The appointment is intended to insulate the Justice Department from accusations of partisanship at a time when the new Republican majority in the House has embarked on an aggressive and open-ended investigation into what they claim is the Biden administration’s bias against their party.
That is certainly one reason, but it’s not the only reason. Garland appointed a special counsel for Trump in December on the basis of his declared candidacy for the presidency. In this case, the target of the probe is the actual president and the man to whom the Department of Justice reports. Plus, Biden is almost certain to be running in 2024, assuming this scandal doesn’t convince him to retire. To have the DoJ investigate the president while siccing a roving prosecutor on his potential election appointment would set up a ridiculously tilted law-enforcement and political situation.
Still, the choice of Hur does seem aimed at negating claims of specific bias. There’s nothing about Hur that should bother either party, but that’s also the point.
This sets up a very unusual moment in history, as the Wall Street Journal points out:
With the appointment, Mr. Hur joins as special counsel Jack Smith, a longtime public-corruption and international prosecutor, who is running an investigation into former President Donald Trump’s potential mishandling of classified records and other matters. John Durham, a former U.S. Attorney in Connecticut, is also continuing as special counsel to investigate the FBI’s handling of a 2016 inquiry into Russia’s interference in that year’s presidential election and any links to the Trump campaign.
It also potentially creates a situation where competing special counsels come up with very different decisions on prosecution. They will operate not just independent of each other but also independent of the DoJ, with Garland the only common point of decision. What happens if Hur decides to recommend prosecution and Smith doesn’t? Or vice versa? Garland may think he’s dodged a political bullet here, but in truth he’s just postponed it.
Best guess: both special prosecutors will spend more than two years and drag this past the next presidential election. Perhaps that will convince both men to pass on 2024. Stay tuned.