Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

I continue to get people asserting as fact that the investigation into Trump’s role in January 6 would be going better if Merrick Garland had appointed a Special Counsel.

I have yet to see calls for a Special Counsel that are not, themselves, just an extended admission that the people calling for one don’t understand the investigation. For example, in a widely shared Asha Rangappa thread in October, she claimed to present Pros and Cons like this:


  1. It’s warranted” (she didn’t say what “it” was)
  2. It would signal that getting to the bottom of this is a priority for the Justice Department” (she didn’t say what “this” was)
  3. It could provide for a more efficient investigation … An SC would be able to have FBI agents and prosecutors detailed to focus on this one matter”
  4. It would insulate Garland from political blowback; “Garland would be right to be concerned with the *appearance* of a politically motivated investigation under his direct watch”
  5. “The Special Counsel regulations have important formal mechanisms for reporting prosecutorial decisions (including declinations to prosecute)”


  1. It gives people who may be subjects of an investigation a ‘heads up'”
  2. It creates a new space for politicization, as we saw with Mueller:”

More recently, a non-public non-expert suggested that because Merrick Garland hadn’t appointed a Special Counsel when he came in, Congress was doing the investigation that a Special Counsel was not.

I want to start from that claim — that Congress is investigating stuff that DOJ is not. It reflects a belief that even DOJ reporters have, such as in this shitty WaPo piece revealing in ¶30 that DOJ is investigating Roger Stone and Rudy Giuliani for their militia ties but then reporting as fact that DOJ “has yet to turn its attention directly to Trump and his close allies.” The things WaPo turns to before examining how — and ignoring that — DOJ is investigating Trump’s one-degree ties to the militias who managed the attack on the Capitol are:

  • Whether DOJ is investigating the war room at the Willard Hotel (never mind that WaPo missed one overt way DOJ is investigating the war room)
  • Whether DOJ is investigating Trump’s call to Brad Raffensperger
  • Whether DOJ is investigating Trump’s threats to install Jeffrey Clark to get an Acting Attorney General more amenable to claiming voter fraud occurred

Of those, only the call to Raffensperger (which is being investigated by Fulton County’s DA) is clearly illegal.

Special Counsels can only investigate crimes, not potential crimes not pursued

It is not clearly illegal, for example, for John Eastman to write a letter calling on Trump to pressure Mike Pence to reject the vote totals or for Peter Navarro to set up a propaganda campaign that members of Congress will point to to justify corrupt action (indeed, the latter is how lobbyists made DC run). It may not be illegal for a President to install someone who has been Senate confirmed as Acting Attorney General who will pursue his policy goals, no matter how corrupt they are; it’s not even illegal for a President to ask a Cabinet Member to lie to the public (and Cabinet Members lie a lot, sometimes for good reasons). It’s even less illegal to consider doing so but deciding not to because of the political cost of doing so, as happened with Clark. It is not even illegal to receive a plan to have the military seize voting machines, especially if you don’t pursue that plan (which Trump did not).

These things only become illegal when they are shown to be part of plan to commit a crime.

There’s the first problem with calls to appoint a Special Counsel. Much of what people want to investigate (again, Raffensperger and the fraudulent certificates are an exception) is not clearly a crime.

I have talked about how the Select Committee is investigating from the top down and DOJ is investigating from the crime scene up (in addition to investigating Sidney Powell’s potential Big Lie fraud). I’ve talked about how, as a separate co-equal branch of government, the Select Committee can more easily do things like get Executive Privilege waivers or waive Speech and Debate protections, the former of which was a challenge for Mueller’s investigation. I’ve laid out how the two investigations have already converged, first with the focus on the targeting of Mike Pence and more recently on the role of Trump’s directions serving as the motivating instruction for three different armed conspiracies, including the sedition one.

But it’s equally important to recognize that the Select Committee is also conducting the important work of investigating things that weren’t crimes, like considering but not acting on a suggestion to seize the voting machines and considering but not acting on a plan to make Jeffrey Clark Acting Attorney General (both issues Bennie Thompson addressed on the Sunday shows this morning).

A Special Counsel can’t be appointed to investigate something that is not a crime.

I realize that people have argued, starting on January 6, that Trump incited the insurrection and that’s the crime that could have predicated the Special Counsel. Bracket that idea. I’ll come back to it.

No Republican Senator is on the record opposing DC US Attorney Matthew Graves leading this investigation

As it happens, Rangappa wrote her thread on October 25, three days before US Attorney for DC Matthew Graves was confirmed on a voice vote. While Ron Johnson held up the vote for other reasons, no Republican Senator thought it important enough to register opposition to Graves to call for a recorded vote.

That means, going forward, the US Attorney overseeing the January 6 investigation can claim the support of the entire Senate. No Republican recorded their opposition to Matthew Graves overseeing the investigation into January 6.

Those asking for a Special Counsel are, in effect, saying that there would be less political blowback if Merrick Garland chose, on his own, to appoint someone to lead an investigation than if a US Attorney against whom not a single Republican recorded opposition led the investigation.

The January 6 investigation is far too large for a Special Counsel

Now consider the claim that a Special Counsel investigation would be more efficient because the Special Counsel would have a dedicated team of prosecutors and FBI agents and a dedicated grand jury. Such claims are astounding for how little awareness of the actual investigation they show.

In Merrick Garland’s recent speech, he revealed there are 140 prosecutors working on this investigation, half normally assigned to the DC US Attorney’s office (that is, people who now report to Graves), and the other half coming from other units. Some of those units are functional, with the most notable being National Security’s Terrorism prosecutors, but also Public Corruption. Far more of them are detailees assigned from different US Attorneys offices. Some of these detailees, working on the simpler cases, are doing 6 month stints, then handing off their cases. Others, including key prosecutors involved in the Proud Boys investigation, appear to be seeing the investigation through. Just as one example, there are three prosecutors on the case against the five Florida men who traveled with Joe Biggs the day of the attack; they are located in Chicago, Brooklyn, and Seattle. Just accounting for the number of prosecutors involved, this investigation is larger than most US Attorneys Offices in this country, and far too large for a Special Counsel to handle.

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through. Given COVID, keeping these grand juries up and running has been a real bottleneck on the investigation (something else Garland alluded to). For one conspiracy indictment I followed, it took five months — from April until September — from the time DOJ stated it would charge it as a conspiracy and the time the FBI Agent could sit with the grand jury safely to get that indictment. So you’re better off having several to juggle than relying on one. “When will Garland get a grand jury for this investigation,” people keep asking, and the answer is that was done already, in January 2021 before Garland was confirmed, in May, in August, and in November. Over a hundred Americans have already been serving, in secret, during a pandemic, on these grand juries that people are wailing must be appointed some time in the future.

Then there are other things about the investigation that have required massive and immediate resource allocations. Most notably, DOJ had to appoint a team (led by a prosecutor named Emily Miller) to create an entirely new discovery system, which has involved throwing large amounts of money at both Deloitte and the Federal Public Defenders office. Special Counsels need to budget ahead, and because this investigation is so large, it would not be possible given the budgetary requirements of the Special Counsel regulation.

We know similar resource allocations are going on at a whole-DOJ level with respect to the FBI (including a reliance on Joint Task Forces for more localized investigations); those decisions are just less visible.

The point being that this investigation is so large it requires the DOJ, as a whole, to manage the resources for it. It’s far too large for a Special Counsel. And nothing about putting someone without those resources who has to budget in advance would make this investigation more nimble.

Calls for a Special Counsel internalize a belief that Trump was further from the mob than he was

So let’s go back. The crime invoked by those calling now or in the past for a Special Counsel as the predicating crime for the investigation is incitement. There are problems with that. Trump’s defense attorneys rightly pointed out during his second impeachment trial that the riot had already started — by the militia that Trump had called out on September 29 — before he incited the mob at his rally. Trump’s relationship with the mob is far more complex — and frankly, damning, than that.

But the other problem with that is if you want to prove that Trump incited the crowd, you need to get proof that those who went on to riot were responding to Trump’s speech.

That’s actually one thing DOJ has been doing for the last year; I would guesstimate that about a third of the 200 or so people who’ve pled guilty have said things in their statements of offense to support an incitement charge against the former President. But they’ve also provided DOJ more specific details about their expectations for what would happen at the Capitol (most notably that Trump would speak again) and how those expectations were manipulated to get them to do things like climb to the top of the East steps just before it was breached. The way in which Trump (and close associates like Alex Jones) manipulated attendees was actually more malicious than simple incitement.

So even (perhaps especially) for the crime that everyone is sure Trump committed, incitement, you need to do some of the work everyone points to in claiming that DOJ is investigating the wrong people, just the pawns and not the generals. One thing DOJ has done in the last year is collect evidence that large numbers of those who, without planning to do so in advance, nevertheless played a key role in occupying the Capitol, did so not just because of Trump’s violent imagery, but also because of the expectations he set among rally goers.

More importantly, what DOJ has spent the last year doing is understanding what those who kicked off the riot while Trump was speaking did, and how those who brought mobs to the Capitol manipulated them to make them more effective. And what they’ve discovered — what WaPo thought worth burying in ¶30 — is they were working with Trump’s closest associates, if not responding to orders from Trump himself.

DOJ already is investigating what happened at the Willard Hotel (and has been since last summer). But they’re investigating it not because a bunch of the people there considered ideas — like seizing the voting machines — that weren’t adopted. They’re investigating it because there are tangible ties between what happened at the Willard and what happened on Capitol Hill.

Consider the centrality of efforts to pressure Mike Pence to reject the legal results of the election. After efforts to overturn the election with legal challenges based on the Big Lie (for which Sidney Powell is already being investigated by prosecutors also investigating other aspects of January 6) failed, Mike Pence became a necessary player in the plots to steal the election. And the effort to pressure Pence is continuous from Donald Trump to his allies to people at the mob.

Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

There are things that Trump did that are independently illegal, including giving Mike Pence an illegal order. But their illegality becomes much more salient in the context of the organized effort to pressure Mike Pence, threaten his life, and prevent the vote certification from taking place.

And DOJ has already acquired evidence that the people at the Capitol who were most deliberately implementing that plan have direct ties to Trump’s closest associates.

Bizarrely, the foundational assumption of those demanding a Special Counsel is that Trump didn’t have any tie to the riot — it has to be!! The foundational assumption of those demanding a Special Counsel is that the investigation of the insurrection won’t get to the former President unless it convenes a separate investigation into him, even though the investigation working up from the mob has already found at least three one-degree links between those mobilizing the bodies at the Capitol and Trump’s close associates (and the grand jury investigation that already charged sedition has at least three cooperating witnesses with ties to Roger Stone).

No one has to ask Merrick Garland to open an investigation that might prosecute Trump. It has been open since long before Garland was confirmed. No one has to ask Merrick Garland to get a prosecutor to convene a grand jury that will investigate Trump’s actions; grand juries have already indicted at least four violent conspiracies that were mobilized by Trump’s calls to violence, including one that has been working since two days after the attack.

If you believe that Trump’s actions played a central role in the insurrection — if you believe that the violent mob mobilized on January 6 was an important part of plans hatched at the Willard Hotel — then creating a separate investigation to investigate Trump does nothing but remove him from his liability in crimes already charged as sedition. That’s why calls to appoint a Special Counsel are so stupid. They treat Trump’s crimes as separate and distinct from those of the mob that he mobilized. There’s no reason, at this point, to do that (if Democrats were to lose in 2024, there might be).

People have been wailing for a year that DOJ needs to open an investigation into Donald Trump and all the while an investigation has been open and has been working towards Trump.

74 replies
  1. Ken Haylock says:

    It’s not that he had no link to the riot, it’s that his svengali like powers of impunity & shameless willingness to obstruct justice means that a lot of people will enthusiastically lie for him, meaning more & more of his crimes will be exposed in the press, anticipation of & pressure for a consequence will grow, & then…. total silence will suddenly descend, & people will have to figure out over a period of some months that the investigation of Trump & his inner circle will just have evaporated into the ether for unknown reasons without comment or explanation…

  2. Yogarhythms says:

    Writing what you believe your intuition tells you may be a muse supporting your understanding of J6 events. Writing what you believe your understanding of the written evidence and legal filings embrace is why people subscribe and donate to emptywheel.net

  3. Desider says:

    I’d like to know what Special Counsel has been successful vs 140 DoJ professionals working on this in tandem with the House Committee. Ken Starr/Whitewater-Monicagate? Iran Contra? Durham? Even Watergate seemed more luck than predicted outcome.

    • obsessed says:

      That was my immediate thought. We’re about 0 for 20 on special counsels so far. On the other hand we’re also batting .000 when there’s not a special counsel. On the other hand (yes, I have 3 hands), this is the first time in 20 years I’ve been more pessimistic than EW, so there’s that. But yes … no special counsel por favor. Hard to argue with this:

      That’s why calls to appoint a Special Counsel are so stupid. They treat Trump’s crimes as separate and distinct from those of the mob that he mobilized.

      And the Special Counsel would be appointed by and report to Garland, so it would give him even greater leeway and better cover to sweep things under the rug.

    • Peterr says:

      Patrick Fitzgerald won the conviction of Scooter Libby, Chief of Staff to VP Dick Cheney, though Dubya commuted his sentence and Trump ultimately pardoned him.

      And Watergate may have seemed more luck than predicted outcome to you, but I don’t see it that way at all. One example: before the first special prosecutor was named, and before the Senate Watergate committee held their first hearing, DOJ attorneys had already gotten John Dean to cooperate with their investigation. That’s not luck. That’s professionals doing their jobs.

      • Desider says:

        Right, so Special Counsel couldn’t get Bush Sr’s (or some cabinet member’s) diary, while Watergate was more resolved via DoJ than Special Counsel magic, and the Iraq WMD one settled for a little fish.
        Plus how long would it take a Special Counsel take to ramp up with such a complex, far-reaching case, and how big would her support be? I still fail to see any advantage here.

    • Peterr says:

      And the Iran-Contra special counsel investigation was screwed by (a) Congress granting immunity to Oliver North and (b) Poppy Bush giving pardons to various folks involved as he was heading out the door [Thank you, Bill Barr!] Lawrence Walsh was livid, and rightly so.

      • Leoghann says:

        Long before the abandonment of Afghanistan and incursion into Iraq, this is when I realized that Dick Cheney is truly an evil bastard.

  4. BobCon says:

    One of the really dumb things about so many pseudo-savvy arguments is how unidimensional they are. They say things like “Garland would be right to be concerned with the *appearance* of a politically motivated investigation under his direct watch” without asking whether the GOP PR machine would do the exact same thing about a special counsel.

    Of course they would. Mueller shows it. And Mueller also shows how happily the press would amplify those charges.

    The unidimensional thinking arises when people don’t do the most basic whiteboard sketch of alternatives. Presenting alternatives and weighing outcomes is harder than unidimensional explanations.

    But they’re also much more engaging and interesting when done right, and producers and editors are shortchanging their audiences (and weakening their revenue numbers) when they lean so heavily on people who express such simplified points of view.

  5. Tech Support says:

    Ultimately I think there are some real benefits to the way this investigation has played out so far, in terms of the media coverage and public perception.

    As noted above, there was not a single objection or reference to the 1/6 investigation in the confirmation of Matthew Graves. Would this have been the case if anyone with power in the GOP felt threatened by the DOJ? If the trolls and pundits were stirring up their audience like some sort of political DDoS attack?

    Meanwhile a lot of the media opinions and reporting critiqued here is portraying the DOJ investigation as being weak, passive, and ignoring those at the top. That’s maybe the best misconception the investigators could hope for that this point. Given the enormous investment of DOJ resources into running this thing, I think it’s a blessing to be able to stay heads down on the effort.

    • earlofhuntingdon says:

      Good way to convince people to ignore the investigations and to weaken political support for them. Journalism, meh. Thank goodness for this site.

    • P J Evans says:

      And his post-season habit is to go for heroics, which doesn’t work. Throwing at the guy way downfield who’s in double coverage, not the closer guy who’s completely open….

      • bmaz says:

        I will never, despite a lifetime of doing so, cheer the Packers again while that piece of scum Aaron Rodgers is still there. Never. Am thrilled for the Niners though.

        • Badger Robert says:

          Incredible discipline under adversity by the 49’ers. And I always cheer for the Packers, and was at the Ice Bowl.
          49’ers cannot be overly praised for what they did.

        • Eureka says:

          I half suspect he’d go to the Stillers so he can be a “local voice” promoting Doctor Woo’s senate candidacy (the charlatan is big into nihilistic football imagery, too, besides his incessant double-ads during every game). That’s if he still wants to play and in any case isn’t required for him to prop misc. chaos agents. His simpatico rants do that work regardless.

          All depends on who’ll pay him and how to stay in the public eye.

        • Philip Munger says:

          Decent set of games last weekend. Aaron Rogers is an example of an athlete who is quite bright, but too proud to sort of humbly look back or examine some of his presumptively assertive premises.

          QB’s do that all the time. He did it differently. It was not iconic or heroic. It was opportunistic, from what I was able to observe.

          The team that beat him fired the guy Aaron dreams he might have the courage to be.

          After this season, the Packers will find it hard to continue to go out there feeling Aaron has their back.

        • Calbear says:

          I went to CAL with Aaron Rodgers. I have rooted for him his entire career even well aware of his arrogant chip on the shoulder mentality. I love cal football and Rodgers played/contributed to a great portion of favorite game wins (marshawn lynch another). What I found interesting how his covid-19 misleading vaccine statements/the big lie politics seemed to be the final straw for loyal cal fans/alums. Being a Bay Area native my loyalty was with the 49ers but the actively cheering against him was new but deserved.

  6. joel fisher says:

    Demands for a special counsel seem to ignore the question of who would it be. A Democrat? Obviously subject to charges of favoritism. From the ranks of the GOP? Either a renegade like George Conway or a Trumper. No thanks. I’m sticking with Garland. Although, I do wish he’d drop a subpoena on TFG.

    • Leoghann says:

      I believe that’s coming. But if it were done right now, it would seem to be out of the blue. And we can thank the inaccurate press for that misconception.

  7. Rugger9 says:

    It would seem that in addition to the Archivist ruling last week and the mention by Rep. Bennie Thompson on Face the Nation that the J6SC has already been talking to ex-AG Barr, there is already more investigations swirling around and closing in on DJT and his conspirators. Observe how Stone lashed out at Jason Miller and Devin belched out his first ridiculous threat among others as examples of RW desperation to change the subject. That makes a Special Counsel idea superfluous.

    I wonder whether Barr timed his book release on the assumption that the original blue-ribbon panel idea would have been implemented and then he would have been free to publish without real consequence. However, since Kevin McC blew that chance for burying the evidence, no one is safe to the point where there is active speculation about which Trump turns on the others first. Cohen and Mary Trump headline the sources but there are plenty of others.

    OT, lots of schadenfreude for Aaron’s departure from the playoffs which is just fine with me. If I were NFL commissioner, once Rodgers admitted to fudging his COVID-19 situation and blowing off his obligations because he said he was “immunized” I would have slapped whatever CBA penalty is allowed for the deliberate injuring of other players and doubled it because of the intent to deceive. At least the rest of the season, but perhaps longer according to the formula noted. Let’s see if Rodgers retires now.

  8. WilliamOckham says:

    I think a lot of this “Garland/DOJ isn’t investigating Trump; we need a Special Counsel” stems from the fact that this isn’t playing out the way that most Washington insiders (including WaPo, NYT, Politico, Axios, etc.) expected. And the primary reason is that the coup isn’t over. The usual suspects aren’t leaking about the DOJ investigation(s) to control the narrative because they are afraid of Trump. Everyone in Trump World saw what happened to Mike Pence and nobody wants to be the target of Trump’s rage.

    And Trump isn’t leaking about his legal troubles because he thinks that makes him look weak.

    Hell, the beltway folks are getting scooped by Rachel Maddow (The Devil, er, Trump Lawyers, Went Down to Georgia”). Now, imagine that you are Mark Meadows or Cleta Mitchell. Is there any reason to leak about your own involvement that investigation?

    Even if you were on the other side of that call, you play it just like Raffensberger has. You publicly demand to be subpoenaed, whether or not you’ve been talking to prosecutors.

    • Rayne says:

      this isn’t playing out the way that most Washington insiders (including WaPo, NYT, Politico, Axios, etc.) expected” is a good thing considering those insiders enabled or facilitated this mess in one way or another with their habitual business-as-usual approach to everything…

      And these insiders utterly miss/ignore roughly half of Congress is compromised and in some way further enabling obstruction of justice while violating their oaths to uphold and defend the Constitution against all enemies foreign and domestic. The blindness is incredible.

    • Leoghann says:

      It may not depend on Rachel Maddow. But at least she’s digging, as opposed to much of the Washington press corps, which is standing around, bitching. Sometimes on camera.

      The Watergate special counsel’s investigation was restricted. It was obvious from the start that the entire plot involved only a few (comparatively) people,and the investigators realized soon that there weren’t tentacles into various industries. The investigators were relentless, and they produced results, which were both timely and damning.

      Then came Ken Starr, who expanded his scope, and expanded it again, all for blatantly political reasons. Since then, the public has had a nagging suspicion that special counsel investigations are official-looking hit jobs, and often they’ve been right.

      A special counsel investigation now would, by focusing on Trump’s inner circle, put its ability to operate in jeopardy, while various politicos had a go with the counsel him/herself.

  9. Peterr says:

    It seems that to many people, a “special prosecutor” is what you engage for some kind of “special” crime.

    Trump wanted to have a special counsel named to investigate Hillary Clinton over her emails.
    Trump wanted to have a special counsel named to investigate Hunter Biden.
    Trump wanted to have a special counsel named to investigate election fraud (and wanted Sidney Powell to be that special counsel).

    You don’t name a special counsel just because it’s a big crime. You name a special counsel because the usual investigative structures are too potentially compromised by conflicts of interest.

    • obsessed says:

      I agree that DOJ rather than a special counsel should prosecute the 1.6 related crimes. What I still don’t understand is why — after Mueller made a list of crimes that he didn’t charge because Trump was the sitting POTUS — did Garland refuse to bring them? What am I missing? Even McConnell justified his vote against impeachment because he felt those charges could and should be brought once Trump was gone. If Garland didn’t bring those charges, why — even if his investigation turns up new charges — are Garland’s defenders here so confident that he’ll behave differently when the time comes?

      • PJB says:

        I have a good deal of confidence in Garland and Monaco but this remains a very good question. Has this been discussed at length on EW’s board? I am sorry if I have missed it but it does seem like obstruction was pretty well established, strongly in at least 4 instances. What is the suspected hold up?

  10. Badger Robert says:

    There’s no need for a special prosecutor to investigate the multitude of crimes. But what happens when DofJ has to prosecute people who had jobs in the former administration, and some might be former DofJ employees?
    And if the prosecution reaches the top, and its becomes necessary to prosecute TDFG, how would President Biden get consent for that step from former Presidents, VPs and former AG’s?

    • earlofhuntingdon says:

      Why would a sitting president need permission from former presidents or vice presidents to allow his DoJ to prosecute a former president or vice president?

      • Badger Robert says:

        OK, so so consent is erroneous, but approval and support would be good. The prosecutor would benefit if very high ranking people would agree, it wasn’t just politics, it was a crime. Anything that would make that more likely, including some separation from the current administration would be helpful.

        • Leoghann says:

          I can’t think of any living past President or VP who would object in the slightest to such an investigation or prosecution.

    • Rayne says:

      Point to where it says in the Constitution that former elected or appointed executive branch officials must grant approval for *any* investigation and prosecution.

    • Badger Robert says:

      I take consent back. It was an error. But for the second time in 50 years the nation would be considering prosecuting a former President. And this current former President did not have a Barry Goldwater to tell him his time was up.
      And Trump should be prosecuted, because he never resigned to spare the nation the trauma of his crimes.

  11. greenbird says:

    oh, marcy – thank you!
    this is BEAUTIFUL.
    (ps: i love CourtListener – ya’ll please contribute when you can.)

  12. massappeal says:

    Terrific post, thank-you. It brings to mind this excerpt from “How the Good Guys Finally Won”, Jimmy Breslin’s Watergate book:

    “For now, in December of 1973, the ultimate weapon of the bureaucracy, paper, was being used to end the career of Richard Nixon. Paper does not lose interest, nor does it get tired. Paper never goes away. With men, climates change, perceptions alter. What is on paper remains constant. The paper is in files, its carbon copies in other files. A subpoena. Thick, folded legal-bond paper. The prosecutor’s office has a copy, the court clerk has two copies filed, the lawyer of the person receiving the subpoena has a copy. Destroy once copy and three remain. Destroy two copies and still two copies remain. Postpone the hearing, protest it on legal technicalities, tie it up in the courts. Become sick and apply for further postponements. Take months, take years, it does not matter at all. The paper does not go away. It is there and everything is on it and there always is somebody ready to pull the paper out of the file and cause it to be acted upon.”

    Allow for the changes in technology and language over the past 50 years, and those words written about John Doar and his team’s work for the House Judiciary Committee apply equally to the DOJ’s and the House Select Committee’s work today.

    • rip says:

      A wonderful paean to “paper”. Real stock with inked characters and signatures.

      We’ve all seen how technology changes this to the electrons that populate our screens, our digital renditions of the original paper, even the supposed signatures of the important people that should be in control. But not – everything including the signatures are now virtual. With cunning everything is forgeable.

  13. Spencer Dawkins says:

    I’m not qualified to do more than ask this question, but I thought Watergate was a Special Prosecutor thing, Iran-CONTRA were Independent Counsel things, and Mueller was a Special Counsel thing. My limited understanding is that they differ on who can appoint them, etc. Is it reasonable to extrapolate from Watergate and/or Iran-CONTRA to January 6th?

    • klynn says:

      IANAL – SD thank you for asking this question.

      I’m trying to clarify this as well and not qualified to answer!

    • Theodora30 says:

      You are right that Archibald Cox was a Special Prosecutor, not an Independent counsel. Special prosecutors are appointed by the Attorney General; Independent counsels were appointed by a panel of three federal judges but that law was not renewed so they no long exist. The position of independent counsel wasn’t created until after Nixon if I remember correctly.
      Anyone who thinks Garland appointing special prosecutor would prevent accusations that he is being political has forgotten what happened to Clinton’s AG Janet Reno. She appointed Robert Fiske, a highly respected REPUBLICAN prosecutor, to be special prosecutor to investigate Whitewater, Travelgate, Filegate, Vince Foster, etc. When Fiske reported that he had found no evidence of crimes committed by the Clintons, the NY Times strongly supported Republican calls for an independent counsel. The Times said that the fact that Fiske had been appointed by Clintons AG had the appearance of political bias. The pressure finally led to the appointment of the independent counsel, that truly biased right winger Ken Starr. The Times and the rest of the media proclaimed he was a trustworthy, non-partisan man and stuck to it even after reports came out that his goal was to be appointed to the Supreme Court. Sally Quinn made it clear that hw was a good guy because he was “one of ours” — i.e. an insider in Beltway society.

      • Spencer Dawkins says:

        I’m also remembering that the “independent counsel” law no longer exists, but I didn’t manage to google up a reference for that (and my memory can be suspect). And thanks for the reminder about the Fiske episode. I wasn’t remembering that one clearly.

      • harpie says:

        How in the world can this all still…STILL!…be so infuriating.
        … I feel like I may just blow a gasket this morning …. [will go for a walk now.]

  14. d4v1d says:

    The big objection to a special prosecutor, it seems to me, is that it turns an already complex two-body problem into an intractable three ring circus. So far, Justice and the Special Committee are disciplined and methodical. We are ill served by the news-entertainment complex – a high pressure fire hose with only a trickle of news to draw from.

    • Leoghann says:

      There is another objection, which has not yet been brought up in this thread. That is the tendency of special-prosecutorial types to make their appointments into lifetime jobs, e.g.: Ken Starr and Robert Durham. Robert Mueller is the exception.

  15. Arabiflora says:

    Terrific post, as usual, EW, I’ll admit that I’ve been puzzling over (but not publicly “whining about”) the absence of a Special Prosecutor in J6-related investigations, primarily in fear that if/when Republicans take control of the legislative branch in November that the J6 Select Committee will be dissolved without reaching conclusions, referrals and subsequent convictions of all the co-conspirators, including TFG. Nothing in your otherwise thorough post considering the cons of Special Counsel Appointment addresses or alleviates my concerns. A little help here?

    • BobCon says:

      The 1/6 Committee expects to have wrapped up by year’s end, so whatever happens with the elections isn’t changing that.

      Also their function isn’t prosecution, it’s obtaining information and releasing it to either the public and/or prosecutors, and they will have done a huge amount of work by then. A special prosecutor wouldn’t duplicate their functions or assist them in ways that regular prosecution and investigative team would under Garland.

      What effect it will all have is unknowable. But the odds are it will have more impact than congressional investigations during the Trump years due to strong cooperation with DOJ rather than stonewalling from Barr.

      • Al Ostello says:


        And, most people forget that whatever J6 committee refers to DOJ, and the evidence they discover, lives on until at least Jan 2025 (even if Dems lose power after the 2022 elections) when AG Merrick Garland’s term could come to an end.

    • P J Evans says:

      They keep forgetting that the Congress elected in November doesn’t take office until after New Year’s.

  16. Marinela says:

    That’s why calls to appoint a Special Counsel are so stupid. They treat Trump’s crimes as separate and distinct from those of the mob that he mobilized. There’s no reason, at this point, to do that (if Democrats were to lose in 2024, there might be).

    The way I understand this, you mean that DOJ under a non corrupt AG is better to handling this, unless WH switches hands and the only reasonable option is a special counsel, for the case where the DOJ doesn’t complete J6 investigations by 2024.

Comments are closed.