November 26, 2022

The 360 ​​gives you multiple perspectives on the headlines and debates of the day.

What’s happening

Attorney General Merrick Garland announced last week that he would oversee the ongoing investigation into former President Donald Trump.

Jack Smith, a career attorney with a history of investigating elected officials, will lead two Justice Department investigations into Trump’s possible crimes: one focuses on the former president’s handling of classified materials after he left office; the other relates to the Jan. 6 attack on the Capitol by a mob of Trump supporters.

Special Counsel operate outside of the typical structure of the Justice Department and have more latitude in conducting their investigations than the typical prosecutor. Ultimately, however, Smith will still respond to the Attorney General.

In a news conference announcing his decision, Garland said that in “extraordinary cases” a special counsel is often required to protect the “independence and accountability” of the Justice Department. He specifically cited Trump’s presidential campaign earlier this month, which put the Justice Department in an unprecedented position to investigate the incumbent president’s potential opponent in the 2024 election.

Why is there a debate

News of the appointment of the special counsel sparked strong reactions from across the political spectrum.

The most vocal response came from Trump and his allies, who described the investigation as a political “witch hunt.” But the decision also drew strong criticism from many on the left, who believe bringing in a special counsel is unnecessary and potentially damaging to the chances of holding Trump accountable for his actions.

These left-leaning critics argue that Garland is naïve if he thinks bringing in an outside investigator will do everything to ease the intense partisan tensions surrounding the investigation. For some, the appointment is reminiscent of the cautious approach of former Special Counsel Robert Mueller, who ended his two-year investigation into the 2016 Trump campaign’s ties to Russia and possible obstruction of justice without issuing a clear verdict on whether the then-incumbent president did so do should be charged. There are also concerns that the addition of a special counsel could slow the progress of the investigation and create the possibility that future charges will not be resolved before the 2024 election is decided.

But Garland’s defense attorneys say he made the right choice, arguing that having as much distance as possible between President Biden and those leading the investigation is critical to the integrity of the final outcome . Others argue that Smith’s appointment is a clear sign that the Justice Department believes it has enough evidence to indict Trump – otherwise there would be no point in making such a significant change so deep in the trial.

What’s next

In addition to ongoing Justice Department investigations, Trump faces legal dangers, including probes into possible fraud by his organization and a criminal probe into his efforts to overturn Georgia’s results in the 2020 election.



Ultimately, Biden will have a role to play in what happens to Trump

“Being president means you can run, but you can’t hide. Biden has two options: he can order Trump not to be investigated, or he can authorize prosecutors to investigate Trump. Every choice has a potential political cost, but he cannot escape the need to make the choice.” — Andrew C. McCarthy,

Special Counsel investigations are prone to exaggeration and abuse

“The default position … should be against special counsel except in truly exceptional circumstances, because by their very nature special counsel has a tendency to become at least as abusive as the investigative diseases they are designed to protect against.” — Quin Hillyer,

Nothing will stop Trump and his allies from attacking the investigation

“No one in the Trump universe is going to believe that any decision to prosecute Mr. Trump would be truly independent of the Attorney General working for President Biden. That is plain reality.” — Editor,

Adding a special counsel could take time the DOJ can’t afford

“The Special Counsel’s most recent investigation into Trump took nearly two years from appointment to an official report. And we still haven’t seen Mueller’s full report. … Two years is a very long time. In November 2024 we will have a President-elect, perhaps Trump himself, who once in office could toss this inquiry into the dustbin, just as House Republicans will do with the January 6 committee as soon as they can .” —Jennifer Taub,

Garland is way too cautious about what should be easy prosecution

“The ‘circumstances’ here just aren’t that ‘extraordinary’. The guy is a private citizen suspected of a crime. That’s all he is, nothing more, nothing less. There’s nothing magical about declaring yourself a presidential nominee. You are then not blessed with the magic oil of immunity. This is not a Get Out of Jail Free card.” — Charles P. Pierce,

The old rules of political independence no longer apply after the Trump era

“The appointment of a special counsel to convince the public of impartiality would be commendable at other times. By the end of 2022, faced with the need to bring an outlaw former president to justice, America’s time will be over. Indeed, the appointment of a special counsel prompted by the former president’s announcement of his 2024 candidacy would itself put politics above principle.” — Dennis Aftergut and Laurence H. Tribe,


The administration is too ambivalent to conduct the investigation alone

“The Attorney General does not have to appoint a special counsel if he decides it would not be in the public interest to do so. But consider this: a government led by a president who has announced his re-election is investigating a former president who has just announced that he will run again. If this is not an extraordinary circumstance, then what is? What lesson would the appointment of a special counsel not teach future attorneys general? These are serious concerns.” — Ruth Markus,

Having a special counsel makes it harder for Republicans in Congress to get involved

“When the new Congress meets in January, the Republican faction in the House of Representatives will have the majority. They have stated with unequivocal satisfaction that they intend to investigate Attorney General Merrick Garland and the Department of Justice (DOJ) for all sorts of alleged sins. … The appointment provides Garland with a succinct answer to his house interrogators. While the move is somewhat tactical, all in all, Smith’s appointment as Special Counsel is a good decision.” — Michael McAuliffe,

There should be as much distance as possible between Biden and the investigation

“While it is impossible to remove all evidence of bias or conflict, or to depoliticize what is likely to be a messy process, if Trump is impeached, Smith’s appointment brings President Biden and the presidency as far out of the circle of a Trump pursuit as it does law allowed. For Garland, it’s the office that counts. He was right about that.” — Kimberly Wehle,

Smith has a chance to make up for Mueller’s mistake

“Smith should therefore face less opposition to his work at the DOJ than Mueller. …Let’s hope rowdy Smith is better prepared for a street fight.” -Barbara McQuade,

Smith’s appointment makes it more likely that Trump will eventually be impeached

“The job of a professional attorney like Smith is to lead cases. And just as there would be no reason to appoint a special counsel to complete an investigation, there is no reason for Smith to take the job unless he intends to bring an indictment case(s).” —Jennifer Rodgers,

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Photo illustration: Yahoo News; Photos: Alex Wong/Getty Images, Jerry Lamps/AFP via Getty Images, Anna Moneymaker/Getty Images

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