By extending the jurisdiction of newly appointed Special Counsel John Smith beyond the Mar-a-Lago classified documents investigation back to the events of January 6, 2021, Attorney General Merrick Garland is making the same mistake House Republicans appear poised to make by declaring their intent to conduct oversight of Hunter Biden as soon as the GOP majority is seated in early January 2023.
Republicans and Democrats alike are set to use the powers within their jurisdiction – oversight by the Congress and prosecutorial power by the Executive Branch – to look backward for partisan political gain, rather than forward to solve real problems in behalf of the American people.
Allow me to explain.
Almost immediately after the midterm election results confirmed that the 118th Congress would be led in the House by the GOP, Party leaders stated that a primary focus of their oversight power would be to launch investigations of Hunter Biden. In this, the Party made clear its priority would be to investigate the past instead of focusing on ongoing abuses of executive branch power, which not only would increase its chances for victory in 2024, but also lay the foundation for correcting those abuses after winning the presidency.
Days later, Garland decided that -- rather than appoint a special counsel only to investigate possible violations of federal law in the current matter of the so-called “Mar-a-Lago” classified documents dump – the new Special Counsel’s jurisdiction would extendbackward to the far broader, and no longer current matters surrounding the January 6th violence on Capitol Hill and efforts by to impede the certification of the November 2020 election.
Garland’s decision to thus expand the jurisdiction of the new Special Counsel makes no sense other than as a political move to wound Trump.
For one thing, the same Department of Justice within which Smith will be operating, already is engaged in hundreds of ongoing prosecutions of those January 2021 events.
Moreover, Democrats in the House already had spent many months investigating events surrounding January 6th, and last year impeached Trump precisely for his alleged role in those events. Talk about duplicating effort.
If the decision to add a special counsel to the January 6th mix was made by the Attorney General as a way to avoid any appearance of partisanship, that ship sailed long ago.
The matter of the Mar-a-Lago document dump presents a very different case for the Justice Department. Regardless of whether one accepts or questions Trump’s actions in handling these documents, the issues raised are extremely significant from a national security perspective.
Additionally, the circumstances surrounding the investigation clearly fit within the purpose and intent of the special counsel law which, for more than four decades has provided a mechanism for investigating politically “hot” matters.
If an investigation of a former president who lost his reelection to the current president, and who already has declared himself a candidate to oppose the sitting president in the next election, is not a case presenting the appearance of partisanship, then there is no such case.
The Mar-a-Lago investigation now in the lap of Special Counsel Smith is one that is serious, is timely, and deserves to be followed through, regardless of whether indictments result.
The core of this investigation involves the question whether a president can unilaterally and without limitation, declassify sensitive government documents to which he had access in his capacity as president, and then retain them after he leaves office. This question has never been conclusively addressed. It needs to be.
Furthermore, based on evidence already in the public domain, it appears the former president may have directed or himself taken steps to hamper, hinder, delay, or otherwise obstruct the FBI’s investigation surrounding the conditions under which the classified materials were taken to and maintained at Mar-a-Lago.
Obstruction of justice under federal law is a serious charge; one that, incidentally, formed the basis for the impeachment of former President Bill Clinton. Failure by the Department of Justice to investigate it thoroughly would be a serious dereliction of duty.
Muddying the waters of the special counsel’s appointment by directing that he extend his investigation into January 6th, however, detracts from what is a legitimate and timely application of the special counsel law to answer a politically thorny but legally significant constitutional question involving presidential powers and national security.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.