Attorney General Merrick Garland’s symmetrical appointments of special counsels to investigate the classified documents imbroglios of President Biden and former President Donald Trump were necessary responses to superficially similar situations.
What has not been appreciated is how the parallel investigations will make it hard for the Justice Department to portray its judgments as principled in each case.
At this point, Mr. Trump’s legal problems seem more serious, because of both the scale of the classified documents at Mar-a-Lago and the seemingly obstructive behavior associated with their return. But the Biden matter is very serious, too, and has become more so with each new discovery of classified documents in his private Washington office and Wilmington, Del., residence. The Justice Department search of Mr. Biden’s residence late last week, which uncovered yet more classified documents, underscores the stakes. And we do not yet know how or why the documents ended up there, what was done with them, or what other documents and information might yet emerge.
The political problem for the Justice Department in sorting out these matters is that Mr. Garland was appointed by and serves under Mr. Biden, a past and likely future political opponent of Mr. Trump. The political fate of both men, and thus the potential length of Mr. Garland’s tenure in office, may be influenced by the Justice Department’s investigative and prosecutorial decisions.
According to Justice Department regulations, a special counsel has “independent authority to exercise all investigative and prosecutorial functions” of the department and is not “subject to the day-to-day supervision” of any department official, including Mr. Garland. Mr. Garland can alter a decision by a special counsel only if it is “so inappropriate or unwarranted under established departmental practices that it should not be pursued” — a high bar. A special counsel’s formal independence is supposed to ameliorate any appearance of bias or self-dealing in the department’s ultimate decisions.
But the highly unusual situation of two special counsels investigating a president and a former president for superficially similar matters raises a novel challenge for the Justice Department: how to persuade the country that it acts fairly and consistently in the two cases. As we learned during the controversy about Hillary Clinton’s email server, a prosecutorial decision related to misuse of classified information can turn on fine-grained and often-contested judgments about how and why classified documents are transmitted to where they should not be, and with what intent.
Over the years, it has not been obvious whether the Justice Department treated like cases alike in the sanctions it doled out against senior government officials — Mrs. Clinton, the former attorney general Alberto Gonzales, the former C.I.A. director David Petraeus — who mishandled classified information. Nor has the department made clear the extent to which these officials received lenient treatment because of their elevated status or the context in which they were investigated, especially compared with cases like that of Reality Winner, a former National Security Agency contractor who anonymously sent a classified report to The Intercept, and Daniel Hale, a former intelligence contractor who disclosed classified details of the American drone warfare program to a reporter.
Even if the Trump and Biden investigations turn out to be factually and legally quite different, as it seems they might, the dual special counsel structure will make it hard for the department to portray its decisions as principled. Normally in such prominent side-by-side investigations, an official reporting to the attorney general would ensure that the same legal and discretionary judgments informed decision-making in the two cases. But these decisions are now delegated to the special counsels Jack Smith and Robert Hur, who do not have the incentives or even the mechanism to coordinate their decision making.
Mr. Hur and Mr. Smith will take many public steps along their investigative paths, including a final decision about the presence of any potential criminality and what, if anything, to do about it. These decisions will invariably raise questions about disparate treatment. Yet neither special counsel will be in a position to explain how his decisions are consistent with the other’s. Nor can the attorney general obviously do so, since the key decisions are formally out of his control so long as they stay within broad department guidelines. If Mr. Garland does end up defending the coherence of the decisions, some might question the degree to which the special counsels were actually independent.
This potentially very tricky problem might not arise if the Trump and Biden cases turn out to be factually uncomplicated and legally uncontroversial. But that rarely happens, especially when the cases are filtered through the lens of fractured Washington politics. And the appearance as well as the reality of impartial justice matters.
The special counsel regulations give Mr. Garland a bit of wiggle room. He can ask each special counsel to explain, as the regulations say, “any investigative or prosecutorial step” and can perhaps through this process suggest how each counsel can act consistently with the other. He can also order the department to clarify as much as possible the relevant practices and policies to which the special counsels are bound. These interventions, however, could be seen as overreaching and would threaten to diminish the independence and credibility of the special counsel decisions.
Another possibility is that the problems can be ironed out in the final reports from the special counsels, with the second report explaining how its decision was based on principles consistent with the first. But there is no guarantee that the special counsel who writes the second report will be in a position to make such a representation or will want to.
The special counsel regulations were not designed for this serious and challenging problem. Mr. Garland needs to do everything he can to prepare to address it, consistent with maintaining detachment from the cases. It is not an easy task.
Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution, served in the George W. Bush administration as an assistant attorney general in charge of the Office of Legal Counsel and as special counsel to the general counsel of the Department of Defense.