On Friday, Attorney General Merrick Garland announced he was appointing Jack Smith as special counsel to take over the investigation into Donald Trump’s alleged pilfering of classified documents to Mar-a-Lago, as well as the investigation into his actions surrounding the Jan. 6 insurrection.
At first glance, the move may seem like bad news for the former president. But actually, it is the best that Trump could have hoped for—and is in fact possibly the payoff he was looking for by announcing his candidacy for president this week, months earlier than any previous non-incumbent major party candidate. It’s been widely reported that Trump was hoping to stave off the closing snare of the Justice Department inquiries and even potential indictment by announcing so early. When he explained the decision, Garland indeed said it was the direct consequence of Trump’s campaign announcement. “Based on recent developments, including the former president’s announcement that he is a candidate for president in the next election, and the sitting president’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel,” Garland said.
Why is a special counsel appointment so good for Trump? The move could add months and possibly years of delay to a grand jury inquiry that experts say already produced more than enough evidence to indict him. The Trump indictment could be delayed to the point that he’s able to mount a political comeback and hold off justice permanently by again claiming power, or Trump could merely receive a pardon by a different Republican president in 2025. If that happens, Garland’s decision could prove largely to blame.
For his part, Garland said that he believed the special counsel’s work could be conducted expeditiously. “Given the work to date and Mr. Smith’s prosecutorial experience, I am confident that this appointment will not slow the completion of these investigations,” he said when announcing the decision.
Smith previously led the public integrity unit of the Department of Justice, focused on public corruption, and has been working as a prosecutor at the Hague. He also tried to reassure those who feared that justice delayed in this case might be justice denied. “The pace of the investigations will not pause or flag under my watch,” he said. “I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
Even if Smith and Garland come into this with the best of intentions, the move is an enormously risky gamble. A lengthy delay in a prosecution that is already ready to go could give Trump chance to make it to primary season—more than a year away—at which point, it will be more difficult to go through with an indictment and trial. In addition to the fairly straightforward Mar-a-Lago documents case, Smith will have to get up to speed on the far more complex investigation into Trump’s efforts to overturn the election. If Smith chooses to prioritize the Jan. 6 case over the documents case that is, by all accounts, ready to go, that would push things back significantly. If he decides to bring the two cases together, or to wait to make a decision in the documents case until he’s made one in the Jan. 6 case, that could also result in months—or years—of delay.
Prior to Garland’s decision, former prosecutors, criminal defense experts, and academic scholars have noted that any potential delay caused by a special counsel could be catastrophic. Earlier this month, David Laufman, who previously led the Justice Department’s Counterintelligence and Export Control Section now at the center of the Mar-a-Lago case, described the potential for such a move in apoplectic terms: “To me that seems idiotic,” he told NBC News of the possibility of a special counsel appointment. “It’s already baked in that there will be criticism … and the idea that relegating this to a special counsel will somehow mitigate or neutralize criticism from the far-right is ludicrous. Just own it. That’s why you’re in those jobs.”
Writing in a Just Security article that was syndicated in Slate earlier this month, former prosecutor Dennis Aftergut and constitutional scholar Laurence H. Tribe described how damaging a special counsel appointment might be. They wrote:
In this situation, Garland is bound to recognize that there is a heavy price to be paid in potential delay. It will already be difficult, if an indictment and trial are to come, to obtain a final judgment against Trump before Jan. 20, 2025. On that day, a Republican administration could come to power and illegitimately scuttle the case.
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There is every reason to believe that a special counsel appointment would extend the timeline. A lawyer from outside the Justice Department—as the regulations require—would need to assemble a team, request a budget, and learn the case. Even if an indictment is nearly ready, as we suspect, additional months would likely be consumed before any indictment dropped.
Tribe did not change his view once the appointment was announced. “As I have written only recently, the clock is ticking and any delay involved as a result of appointing a special counsel will be most unfortunate,” he told me over email. “What I hope is that special counsel Jack Smith will move with great expedition in light of all the work that has been done thus far and the overwhelming case for prosecuting the former president that is already established by the mountain of evidence we know exists.”
One reason why these legal experts are frustrated with the delay brought on by a special prosecutor is because there is no clear benefit in such a move—the reason for it is largely an aesthetic solution to criticism of partisanship on the part of the DOJ. Bradley Moss, one of the top criminal defense attorneys in classified documents cases, has said he believes the case against Trump could go ahead immediately. On Friday, he said he thinks any delay caused by a special counsel appointment would be a too-high cost for the limited gain of being able to claim investigatory independence—and he think it is likely to cause a delay.
“Without a doubt, this was the conventional, politically-safe, institutionally appropriate move by AG Garland. It addressed the mere appearance of conflict, even though there was no evidence of any reason DOJ required a Special Counsel,” Moss told me over email on Friday. “I have little reason to believe, however, that it will do a thing to stop Mr. Trump and his cronies from dragging Jack Smith and the DOJ through the mud for the next 12-18 months.”
Indeed, no matter who leads the probe, the final decision of what to do with the results of these investigations still rests with Garland. And if the conservative nature of this decision is any indication—well, it does not look like many indictments will be served any time soon, if they are served at all.
