The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Breaking news! Classified documents were found in the home of former Vice President Pence. These documents were discovered by Pence's own teams. But, if the Biden experience has taught us anything, a search by the FBI may turn up more documents.
So what is Merrick Garland to do? Mike Pence very likely may be a presidential candidate for 2024–a candidate who will run against Trump, and potentially Biden. And we know that Garland waited for Trump to announce before appointing a special counsel. Does Garland appoint yet another special counsel to investigate Pence now? Does Garland wait till Pence announces? What a mess.
I highly recommend Jack Goldsmith's guest essay in the Times today. He explains the potential coordination problems between the two current special counsels.
Even if the Trump and Biden investigations turn out to be factually and legally quite different, as it seems they might, the dual special counsel structure will make it hard for the department to portray its decisions as principled. Normally in such prominent side-by-side investigations, an official reporting to the attorney general would ensure that the same legal and discretionary judgments informed decision-making in the two cases. But these decisions are now delegated to the special counsels Jack Smith and Robert Hur, who do not have the incentives or even the mechanism to coordinate their decision making.
Mr. Hur and Mr. Smith will take many public steps along their investigative paths, including a final decision about the presence of any potential criminality and what, if anything, to do about it. These decisions will invariably raise questions about disparate treatment. Yet neither special counsel will be in a position to explain how his decisions are consistent with the other's. Nor can the attorney general obviously do so, since the key decisions are formally out of his control so long as they stay within broad department guidelines. If Mr. Garland does end up defending the coherence of the decisions, some might question the degree to which the special counsels were actually independent.
Now, there might be a third special counsel investigation to coordinate.