About Your Pence Special Counsel Complaint: On the Missing Coverage of Section 600.2(b)

I’m seeing people ask why Merrick Garland hasn’t appointed a Special Counsel yet to investigate Mike Pence when (the claim is) he did for President Biden.

The answer is … that’s not what happened.

DOJ learned about the documents at Pence’s house no earlier than January 18 (probably on January 19), so seven or eight business days ago.

At this stage of the Biden review (seven days after DOJ learned about the documents from the Archives), Garland hadn’t appointed US Attorney for Chicago John Lausch yet. As Attorney General Garland explained when he announced the appointment of Robert Hur, ten days after DOJ learned about the documents at Biden’s office, he asked Lausch to investigate:

  • November 4: DOJ learns of the Biden documents
  • November 9: FBI starts an assessment
  • November 14: Garland appoints John Lausch

More importantly, Lausch wasn’t appointed as a full Special Counsel under 28 CFR 600.4, which is what Jack Smith was appointed under. Rather, Garland appointed Lausch under 600.2(b).

On November 14, pursuant to Section 600.2(b) of the Special Counsel regulations, I assigned U.S. Attorney Lausch to conduct an initial investigation to inform my decision whether to appoint a Special Counsel.

Section 600.2(b) permits the Attorney General to appoint someone to conduct an “initial investigation” to better inform the decision whether to appoint a full-blown Special Counsel.

Importantly, Garland didn’t reveal that he had appointed Lausch until the day he appointed Hur, this time under 600.4.

So Garland could well have appointed someone — could be Lausch, could be Hur, could be someone who wasn’t appointed under the Trump-Pence Administration, as both Lausch and Hur were — to conduct an initial assessment regarding Pence’s documents without telling the public, just as he did with Biden. If he followed the same approach he did with Biden, he might not reveal that step unless and until he appointed a full Special Counsel.

Check back on March 17 to see where DOJ is with a Pence review, which would be the same almost two months out as it took to appoint a Special Counsel with Biden.

Maybe by then someone will have been appointed to review the classified holdings of all former Presidents and Vice Presidents.

To anticipate one more complaint, about why Garland waited nine months after the discovery of classified documents in boxes that had been at Mar-a-Lago before appointing Jack Smith: DOJ started using a grand jury no later than May 11 in Trump’s case, which is when they sent a subpoena for all documents with classification markings (I believe the subpoena reflects a grand jury seated on April 27). The subpoena came just over two months after FBI received the NARA referral on February 9. The timing of the Special Counsel appointment pivoted on the fact that Trump announced his his run for President, not the intensity of the investigation.

In fact, Garland might not appoint a Special Counsel if Pence doesn’t formally announce (if even there’s cause to do so).

It’s not at all clear that these investigations should follow a parallel track. But even if they should, Pence has not yet been treated differently than Biden.

3 replies
  1. Klaatu Something says:

    Adding Pence to the Biden special counsel makes the most sense to me but I get the impression no one is even considering this, at least I have read no one express this idea. Ten years ago I would have asked how far off the reservation I was wandering, but now that I realize how insulting that is, I’ll just ask if it’s legally practical.

    p.s. I do not consider myself “woke” but “off the reservation” is clearly as racist as fvck (comment #979738 – still shooting to be the millionth customer)

  2. The Old Redneck says:

    This is not that complicated. Why is Marcy the only one pointing it out? I can’t count the number of headlines and stories which said Garland had appointed a special counsel as to Biden. Thank you Marcy for cutting through the noise, as you so often do.
    I’ll leave the differences in treatment for higher ups vs. low level federal employees who mishandle classified information for another day (David Petraeus in particular sticks in my craw).

  3. deborah s alexander says:

    Atty Joyce Vance relates Garland’s Decision to appoint the Trump Sped Counsel (and possibly his ultimate decision to appoint a Biden Spec Counsel) to TWO points:

    the Trump Spec Counsel appt on Nov 18th (AFTER two(2) different sets of Biden docs had been found at two locations – the 2d notice to Lausch on Dec 20 ), and
    Biden’s failure to publicly acknowledge all docs discovered in 2022 when his first statement was made in 2023

    Time Frame . (thx to PBS for most dates)
    (1) Nov 18th –having ALREADY
    (a) learned on Nov 4th (from NARA) of the Biden docs’ Nov 2d discovery at his office –AND
    (b) begun on Nov 8th an FBI assessment of the 2d set of Biden docs at his home – AND
    (c) assigned on Nov 14th US Atty U.S. John Lausch –
    Garland announces Jack Smith to be Spec Counsel on the Trump Docs.

    (2) Jan 12 – Garland has already rec’d Lausch’s Jan 5th recommendation of a Spec Counsel, AND he is faced with seeing Biden’s Jan 9th acknowledgment of the (pre-election discovery) which EXCLUDES mention of addl docs at his home (Dec 20, 2022).
    He announces both Laushc and Hur.

    Vance says that Garlands Nov 18th appointment of Jack Smith was informed by the DOJ dealing with ongoing Biden docs discoveries.
    This seems likely.
    AND as I recall (maybe I’m incorrect here!)
    Vance also says it is possible that Garland’s ultimate decision to accept the Lausch recommendation MAY have been informed by watching Biden’s choice not to voluntarily disclose anything to the public until the 9th of January. —Made more problematic when there is no public disclosure on Jn 9th that a 2d set of docs was found at his home in 2022.

    I am less certain of my memory of what Vance says on this 2d issue – OR whether there’s any there there, on the 2d issue.

    BUT the 1st issue — Garland choosing to appoint Jack Smith, knowing full well that he may be faced with a quagmire on the Biden matter – seems rational.
    MOTIVE – Get the REALLY Criminal thing done FIRST with the Trump Docs matter (!)

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