Nov 22, 2022

The (new) Trump special counsel.

Attorney General Merrick Garland, who announced the appointment of a special counsel last week. Photo: Senate Democrats
Attorney General Merrick Garland, who announced the appointment of a special counsel last week. Photo: Senate Democrats 

Plus, who Democrats might tap in 2024.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

We're breaking down the appoinment of another special counsel investigator to look into Trump. Plus, a question about who Democrats might try to run in 2024 (if not Biden).

Reader feedback.

Here are two pieces of feedback I got to yesterday's newsletter on Nancy Pelosi:

"You are biased in your articles. Your editorials are totally biased but I guess since it is labeled 'editorial' you have a right to give your opinion. If so then do not call your newsletter unbiased. I guess you can tell I’m a Republican. Was really looking forward to reading 'just the news' but I’ll have to keep looking. It’s not easy with all the left wing media out there and you are just another one of many many upon many of them."

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Quick hits.

  1. The 22 year old alleged Club Q shooter in Colorado Springs was charged with five counts of murder and five counts of bias-motivated crime after a mass shooting at an LGTBQ nightclub. (The charges)
  2. Ukrainian authorities have started to evacuate civilians from some recently liberated parts of the country, warning that a lack of power and heat could make conditions unlivable this winter. (The evacuation)
  3. Iran's national soccer team did not sing their national anthem at the World Cup in an apparent show of solidarity with protests happening across the country. (The protest)
  4. A 5.6 magnitude earthquake on Indonesia's most populous island, Java, has killed at least 268 people and injured over 1,000 others. (The deaths)
  5. The largest railroad worker union in the U.S. says it has rejected the latest collective bargaining agreement brokered by the Biden administration, renewing fears of a December strike. (The deal)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.

Today's topic.

The new special counsel. On Friday, Attorney General Merrick Garland appointed Jack Smith as special counsel to oversee two Justice Department investigations into Donald Trump. Smith is a former federal and international war crimes prosecutor who once led the Justice Department unit that was responsible for public corruption cases.

He will be the third special counsel that has looked into Trump in the last five years, and will be responsible for leading the investigations into Trump's handling of the classified documents found at Mar-a-Lago and the purported efforts by Trump and his allies to overturn his 2020 election loss. The appointment was made three days after Trump announced his plans to run for president.

Reminder: Special counsel investigators are a relatively new idea, first introduced in 1999 in an effort to hand over politically sensitive investigations to independent prosecutors. In 2016, special counsel Robert Mueller was appointed to investigate Trump's potential collusion with Russian officials because the Justice Department believed it had a conflict of interest overseeing an investigation when many of its appointees were going to be nominated or tapped by the president-elect himself.

In Mueller's official report, he described Russia as engaged in disinformation and hacking campaigns to harm Democrats in the 2016 elections, and found contacts between Russia-linked entities and Trump campaign advisers, but did not discover any conspiracy between the two sides.  He did prosecute several senior Trump advisors for trying to curtail the investigation by lying to to investigators, and some for financial crimes, but Trump pardoned most of those advisors in his final days in office.

Before Trump left office, his handpicked Attorney General William Barr appointed John Durham, another special counsel investigator, to look into the origins of Mueller's investigation into Trump and Russia. So far, both of Durham's criminal trials have ended in acquittals, and he is expected to release his final report in the near future. With Smith’s appointment, this is the first time in U.S. history that two special counsel investigations are active at the same time.

Special counsels still report to the attorney general and have to follow DOJ rules, but they create separation between the department and the investigation. It's a sign of the political sensitivity of the Trump investigations that Garland, who was nominated by President Biden to lead the DOJ, tapped Smith, a political independent, to lead the investigations.

“Based on recent developments, including the former president’s announcement that he’s 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 in comments on Friday. “This appointment will not slow the completion of these investigations.”

Trump responded on Truth Social, his Twitter competitor.

“Here we go again!” he said, arguing that the Jan. 6 investigation was a “dead issue” and “likewise felt that the document hoax case…was dead, or at least dying fast. The Democrat Department of ‘Justice’ had nothing, except Trump haters, so they just appointed a Special Prosecutor to go after me further. Disgraceful!”

Even some allies of Biden and Garland were worried about the appointment of a special counsel, arguing that it might drag out any potential prosecution of Trump, while also making it seem as if the Justice Department is incapable of conducting its own independent investigations.

Today, we'll take a look at some reactions from the right and left to this news, then my take. You can find our previous coverage of the Mar-a-Lago search here, and our previous coverage of January 6 here.

What the right is saying.

  • Many on the right criticize the special counsel appointment, saying it does not de-politicize the investigation.
  • Some say it’s hypocrisy not to also have a special counsel in the investigation into Hunter Biden.
  • Others suggest the special counsel may have been appointed to slow things down because Democrats want Trump to be a viable 2024 candidate.

In Spectator, Jed Babbin said the appointment is meant to prevent any prosecution from being labeled political, but that attempt will fail.

"Thanks to the repeal of the awful 'independent counsel' statute, any special prosecutor works for the attorney general and he, in turn, works for the president. Those facts render it inevitable that any prosecution of Trump, now a declared presidential candidate and likely opponent to Biden, is politically motivated unless proven otherwise," Babbin said. "Any trial of Trump would be held in Washington, D.C., because the conduct — destroying documents and the Jan. 6 speech — took place there. A D.C. jury would convict Trump of anything from the Lindbergh kidnapping to the death of George Floyd and no D.C. federal judge will order a change of venue because of that.

"This is the second time that Trump has been investigated by a special prosecutor. Robert Mueller’s investigation took two years and spent over $30 million trying to tie Trump and his 2016 campaign to Russia. Jack Smith’s investigation won’t take that long because it has a deadline, the next presidential election," he wrote. "The Smith investigation will aim to interfere with Trump’s campaign with selective leaks and may tie him up in a trial next year or even in 2024. Former Attorney General Bill Barr has said that the prosecutor probably already has enough evidence to indict Trump. Investigation and prosecution of political opponents are common in third-world despotisms but not in America. We deserve better and so does Trump."

Jonathan Turley called out the hypocrisy of Garland not appointing a special counsel to investigate Hunter Biden.

"In making that case for a Trump special counsel, however, Garland may have made a case against himself for refusing to appoint a Biden special counsel in the Hunter Biden scandal. Garland’s department is investigating potential wrongdoing that could involve the other referenced candidate, President Biden, in the Hunter Biden matter," he said. "That investigation should be looking at numerous alleged references to the president using code names such as 'the Big Guy' in the context of receiving percentages on foreign deals and other perks. Yet Garland has refused to appoint a special counsel in an investigation that not only could prove highly embarrassing to the president but, in the view of some of us, could implicate him as well.

"House Republicans are now poised to look into these foreign deals — and how the Justice Department may have stymied or slowed any investigation before the 2020 election," Garland said. "While the special counsel appointment helps insulate Garland from claims about the use of his department for political purposes on any Trump charges, he may soon face new challenges, including possible contempt referrals if Biden officials or Democrats refuse to supply information or testimony to Republican House investigators. Garland has sharply departed from prior cases in which the Justice Department largely refused to prosecute such contempt referrals; he has been very active in pursuing Trump officials who failed to cooperate with Congress. He now may be asked to show the same willingness to pursue those who obstruct or defy House Republican investigations."

In National Review, Andrew McCarthy called it an "ironic" special counsel.

"The reason for appointing a special counsel is to create a layer of insulating independence, assuring the public that the conduct and outcome of a criminal probe are being driven by pure law-enforcement considerations, not by politics. Realistically, though, the special counsel provides no such assurance. In our constitutional system, the authority to prosecute is executive, so any federal prosecutor — special or ordinary — exercises power as a delegate of the president," he wrote. "There is no getting around the fact that Jack Smith, as he decides what to do about Donald Trump, will answer to the attorney general and to President Joe Biden, against whom Trump hopes to run in 2024. But the irony does not end there. Not by a long shot.

"We need a special counsel, lest the public believe the Democrats are using the government’s law-enforcement power to neutralize a threatening political opponent. In our almost-inconceivable situation, however, these are not the politics we’re dealing with. The Democrats want to run against Trump. The last thing they want is to neutralize him. They believe he can count on the subset of pro-Trump Republicans who adore him to vault him to the GOP nomination, thereby vanquishing Republican candidates who would pose more of a threat to Biden in the general election," McCarthy said. "At this point, with Trump, they are playing with house money: If he does not get charged, he is a political asset for Democrats in the 2024 campaign; if and when he is no longer a viable GOP candidate, he can be charged and anti-Trumpers everywhere will exult. Win-win."

What the left is saying.

  • Many on the left support the appointment, and call out Republicans for being impossible to please.
  • Some argue Garland had no choice, and nothing he did would have persuaded Trump supporters he deserved to be investigated.
  • Others say the special counsel will drag out the investigation and harm the Justice Department.

In The Los Angeles Times, Harry Litman said the right has "DOJ derangement syndrome."

"Almost as soon as Atty. Gen. Merrick Garland announced the appointment of a special counsel to provide independent, nonpartisan oversight of criminal investigations related to Donald Trump, Republicans started screaming," Litman said. "The appointment in itself, they said, demonstrated the Department of Justice’s corruption and politicization… Smith, a registered independent, is a career prosecutor who has honorably worked at the state, federal and international level. I wouldn’t be surprised if he has never been in the same room with Garland... Friday’s pile-on reveals that the GOP is working from an already formulated script that neither facts nor the law can change.

"For the rest of Joe Biden’s first term, the most orthodox or routine Justice Department decision will be flogged as a political scandal, with no regard for the specific merits of the cases. It’s just who Republicans are now: transparently politicizing and hyperpartisan actors. Their stance is not only deranged, it is fundamentally dishonest," he wrote. "These Republicans demonize Garland notwithstanding that any honest broker or Washington insider — including many of them — fully understands that Garland’s integrity, fair-mindedness and commitment to justice without fear or favor are beyond reproach, and that the investigations and potential prosecution of Trump is driven, indeed required, by a commitment to equal justice under law."

Ruth Marcus called it "cautious" but also "bold."

"I thought Garland had more leeway to make the judgment call the other way, but in retrospect it seems almost inevitable that the by-the-books attorney general would go the special counsel route," Marcus said. "Justice Department regulations provide that the attorney 'will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted' and that investigation or prosecution 'would present a conflict of interest for the Department or other extraordinary circumstances.' The regulations offer an out, one I previously wrote that Garland should take: The attorney general doesn’t have to name a special counsel if he decides that would not be in the public interest.

"But consider: An administration headed by a president who has announced his intention to seek reelection is investigating a former president who just declared he will run again. If this does not constitute an extraordinary circumstance, what would?" Marcus asked. "Naming a special counsel was never going to assuage the concerns of Trump partisans that the Biden administration is out to get him, as the immediate reaction from Trumpworld underscored. But Garland’s goal was not to persuade the unpersuadable. It was, in the familiar language of the law, aimed at how a reasonable person would perceive the fairness of the investigation, and whether a reasonable person would think a special counsel was warranted under the facts at hand and the language and spirit of the regulations."

In NBC News, Michael Conway criticized the appointment, saying it will bog the investigation down and contradict Garland.

"The stunning sweep of the mandate Garland conferred on special counsel Jack Smith likely doomed a prompt and focused determination of whether Trump should be indicted. Despite assurances from Garland that a special counsel will not bog down the investigation, reality suggests otherwise... the newly named special counsel will inherit the team of FBI agents and government prosecutors who have been conducting these investigations for months," Conway said. "If there were any taint of bias by these investigators — and there is none — then simply allowing the same Justice Department personnel to continue the investigation under a new boss wouldn’t cure any claimed conflict. Smith will simply be a new supervisor for the same investigators.

"Additionally, Garland’s comments implicitly acknowledged the perception that a standard by-the-book investigation of Trump by the Justice Department could be perceived as an appearance of a conflict of interest, which undermines his own oft-repeated statement that no one is above the law. Not to mention that past practice demonstrates that the Justice Department has regularly shown that anyone can be held accountable — without resorting to a special counsel... local federal prosecutors investigated Spiro Agnew while he was vice president for taking bribes when he was an official in Maryland... Former Republican Reps. Chris Collins of New York, Duncan Hunter of California and Jeff Fortenberry of Nebraska were indicted by federal prosecutors and convicted... The fact that Trump is a former president or running for re-election makes no difference."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. It is meant to be one perspective amid many others. If you have feedback, criticism, or compliments, you can reply to this email and write in. If you're a paying subscriber, you can also leave a comment.

  • Garland was damned if he did and damned if he didn't.
  • We have a very clear need for an investigation into the classified documents that were found at Mar-a-Lago.
  • It is impossible for Garland to defend not appointing a special counsel in the Hunter Biden case.

I'm not sure how much choice Garland really had.

He is a Biden appointee, and Biden says he is running for re-election, and Biden's chief political opponent says he is running for re-election too. There is a legitimate ongoing investigation into a legitimate issue of Biden’s chief political opponent, and not even trying to create separation there would be a huge problem. Is a special counsel a perfect solution? No. Does Jack Smith seem like a good choice? Yes. Will this calm the political waters at all? Almost certainly not.

Look: Based on Trump's own words, reporting, photo evidence released by the Justice Department, and a slew of other facts, we know that Trump took classified documents from the White House and stored them at Mar-a-Lago. We can say fairly confidently that he did not store them with much caution. We can easily imagine that they were "mishandled" in the legal sense. There are questions about why he did what he did, and if he destroyed any such documents, but those basic facts alone require an investigation.

As I've written before, comparisons to Hillary Clinton don't fit cleanly here. But obviously, Clinton not being charged will make it harder for Garland or Smith to justify prosecuting Trump now. They’ll need to demonstrate that Trump passed a clear threshold well above what Clinton did. Even if they do so successfully, though, the story of Clinton's email server broke in 2013. It has been a story for nine years since. She was investigated and cleared by the FBI and the Justice Department Inspector General. She was also investigated by numerous partisan congressional committees and the State Department.

Those investigations took years. If we want to treat her and Trump "fairly" or "evenly," then he has to go under the microscope the same way she did.

The investigations into January 6 are much more difficult and, in my opinion, much more politically perilous. We are less sure what exactly Garland was looking for and what exactly he has. Trump's role on January 6 was both public and obvious but also squishy. Are they going to try to charge him for inciting a riot because of the rally he held in D.C.? Will they try to get him on obstructing the count of the electoral vote? Is there something that happened that we still don't know, even after the January 6 hearings? It's harder to parse. I think Trump's greatest legal threat will come from state-level investigations like the one in Georgia.

Regardless, it is also true that having this special counsel but not one for the investigation into Hunter (and Joe) Biden is mind-boggling. We know that investigators believe they have enough evidence to charge Hunter Biden with tax and gun crimes. We also know Biden's defense team is meeting with the Justice Department to counter the government's potential case. We know that the emails published from Hunter Biden's laptop were authentic, and show he tried to peddle his father's influence for foreign business deals — even floating the idea of potentially breaking off some profits for the now-president.

The idea that an investigation into the president's son, and potentially the president himself, does not require separation from the Justice Department, but an investigation into his political opponent does, is just as ridiculous as it reads.

Of course, the whole current state of affairs is frankly quite unprecedented if you pause to think about it. We now have two active federal investigations into the odds-on Republican presidential favorite for 2024. We have an active federal investigation into a previous federal investigation of that same candidate. We have an active federal investigation into the current president's son — one that may touch the president himself. And we have a new Republican House majority promising to launch at least five separate investigations into the President and several of his high ranking administration officials the moment they get control of Congress.

Are you keeping up?

As Jonathan Turley so eloquently put it, "There seemed to be enough torpedoes in the water in Washington this week that you could walk across the Potomac without getting your feet wet."

Your questions, answered.

Q: Is there a Democratic candidate outside of Biden that can successfully challenge Trump?

— Matthew from Houston, Texas

Tangle: Sure. I think there are plenty who’d have a decent shot. Transportation Secretary Pete Buttigieg is loved by the Biden administration and seems adept at going on Fox News and talking to independent and right-leaning voters. He's probably the best communicator the party has had since Obama, even if he's loathed by progressives. Michigan Gov. Gretchen Whitmer just cleaned house in her election in a swing state. California Gov. Gavin Newsom has name recognition and executive experience in the most populous state in the union, however tattered its reputation.

I think there are other less well known folks who may become better known soon, too. North Carolina Gov. Roy Cooper is an interesting prospect, though he's shown no sign he is going to run. I think Ohio Sen. Sherrod Brown has real working class appeal (and can win in red states), but again: No indication he wants to step up. Colorado Sen. Michael Bennet couldn't get any traction in 2020, but I wouldn't be shocked if he gave it another run in 2024 — and if voters gave him another long look. Colorado Gov. Jared Polis should be in the conversation, too.

Obviously, Vice President Kamala Harris will be on the map, though I don't think she could beat Trump. Even if she were anointed by Biden, her time in the spotlight has loaded her with too much baggage, and her role as vice president has been... underwhelming. Democrats’ best shot is probably to recruit someone lesser known, meaning Harris, Sen. Elizabeth Warren and Sen. Bernie Sanders should probably step aside.

It's a long way off, but I'm keeping a close eye on a few governors across the country. It has been a while since we had a governor elected president (the last one was George W. Bush in 2000). But Congress is so poisoned in the public's eye that I think Democrats would be wise to look to some purple state executives for a Democratic replacement, if they seek one out.

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Under the radar.

For the first time in decades, it may be more economical to eat out for Thanksgiving than shop, cook and clean up for a traditional meal. That's according to a new Wells Fargo analysis that dives into the current state of food inflation. The combination of record food prices with turkey and cranberry shortages has a lot of Americans looking to restaurants to fill the gaps. Those restaurants, who are still trying to recoup pandemic losses, are happily welcoming them. It's a simple numbers game: The cost of dining out has gone up 5.8% over the last year, while the cost of groceries has risen 9.8%. Axios has the story.


  • 2%. The percentage of Americans who say they trust the government in Washington to do what is right "just about always."
  • 19%. The percentage of Americans who say they trust the government in Washington to do what is right "most of the time."
  • 45%. The percentage of Americans who say they believe Trump broke the law in his handling of classified documents or efforts to overturn the election.
  • 44%. The percentage of Americans who say they believe Trump did not break the law in his handling of classified documents or efforts to overturn the election
  • 17%. The percentage of Americans who say his storing of documents at Mar-a-Lago was not illegal but it was unethical.
  • 40%. The highest percentage of Americans that ever said Trump broke the law in regards to the Russia investigation.

Have a nice day.

A new report shows that South Korea is successfully recycling close to 100% of its food waste, a remarkable feat that experts think could be a model for the rest of the world. Using a combination of low-cost food composting bags, automated food waste collectors in apartments, and the spread of processing plants, South Korea went from recycling just 2.6% of its food waste in 1996 to nearly 100% today. In the U.S., food waste still winds up predominantly in landfills, where it releases methane into the air or pollutes waterways. As many as nine states now have bans on landfilling organic waste, and several cities are introducing experimental programs to try to implement food waste recycling on a broad scale. The Guardian has the story.

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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.