Home » Opinion | It’s Time to End the Use of Special Counsels

Opinion | It’s Time to End the Use of Special Counsels

by Marko Florentino
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Should the Biden Justice Department subject Mr. Biden’s opponent in the presidential race to a lengthy and damning trial just before the election?

Some will argue yes, on the ground that the allegations against Mr. Trump go to the heart of American democracy and should be resolved in due course regardless of the political implications.

Others will argue no, on the ground that it is an irreversible catastrophe for American democracy, as well as the Justice Department, for one presidential administration to use criminal law to attack the president’s opponent in a campaign. That’s especially true since the president’s central campaign theme (Mr. Trump’s threat to democracy) will dovetail with, and find everyday support, in Mr. Smith’s courtroom presentation.

Whether to allow Mr. Trump’s trial to proceed during the campaign, should the Supreme Court deny Mr. Trump’s immunity, is a decision with grave, crosscutting, long-term but hard-to-fathom consequences for the election, for the norm of prosecutorial noninterference in elections, for our broader politics, for the possibility of evenhanded justice and for the reputation of the Justice Department.

This monumental decision turns in part on the proper application of the Justice Department norm about avoiding prosecutorial interference in elections. The department’s inspector general has described this norm as “not written or described in any Department policy or regulation” and has indicated that its contours are uncertain. But the special counsel’s lawyers recently claimed, in the classified documents case, that the norm did not apply to the selection of a trial date in the shadow of the election.

The decision about the proper interpretation of this obscure rule, and especially its application to a presidential election, can and should be made openly and with express responsibility by Mr. Garland, the person nominated by the president and confirmed by the Senate, and not by Mr. Smith, an attorney who lacks democratic pedigree. On this call, Mr. Garland should not hide behind his special counsel. He needs to own it, one way or the other.

Jack Goldsmith (@jacklgoldsmith) is a law professor at Harvard, a nonresident senior fellow at the American Enterprise Institute and a former assistant attorney general in the George W. Bush administration. He is a co-author of “After Trump: Reconstructing the Presidency.”

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