If there is one lesson to be learned about our judicial system over the past six years, it is this: we have no "institutions," only people. The mythology of "our institutions" exists mainly to protect officials in powerful positions from scrutiny and criticism. And there is no more "institutional" man in power, right now, than Merrick Garland.
The appointment of a special counsel to handle the Department of Justice's investigations into former President Trump's actions essentially shelves those investigations. Garland knows that the appointment means significant delay in the already slow-walked matters and he must be considered to have intended the most likely results of his action.
The January 6th investigation has been going on nearly two years and the classified documents probe well over a year. The special counsel, Jack Smith, will need to bring himself up to speed, a process that could reasonably take a few months – plus it's the holidays. He'll need to hire a team of prosecutors and investigators, which could also take months, and those lawyers need to get up to speed on hundreds of thousands of pages of material. No lawyer in Smith's position will be satisfied with any existing investigation such that he could proceed to indictment without new investigatory steps of his own, so he will issue subpoenas, perhaps conduct searches, and interview (or re-interview) witnesses. That will take months, if not years.
At each step, the former President's lawyers will add delay. They can now challenge every aspect of the existing investigation in a new context, plus every new step. Recall that Trump was caught red-handed with classified documents he had lied about returning to the government in early August of this year. He then launched a challenge widely described as utterly frivolous, but yet that challenge is still being entertained in the Eleventh Circuit, with the Supreme Court yet to speak. It will be simple enough to recycle issues in what his attorneys will call the "dramatically new circumstances presented by the Attorney General's appointment of a special counsel," while writing up reams of new motions and objections to slow matters down.
This will be tough to take for those who believed that our "institutions" would treat felonies committed by a President, or former President, as equally if not more important than one committed by an ordinary person, but it will be just fine for Merrick Garland. Garland announced that the appointment would alleviate any perceived conflict of interest now that Trump has declared again for President. In that way, Garland avoids some criticism of himself, but there is no upside for anyone else. Trump easily convinced his followers that the special counsel appointed by his own Justice Department was a biased tool of the Democrats – one appointed by Garland in Biden's will be a much easier target.
The appointment amounts to a political gift to Trump who will use it, as always, to make himself the center of attention. After all, none of the other Republicans running for President have been singled out for a "special" investigation orchestrated by the Administration. "They're investigating me, but they're really after YOU!" You may say "Trump can't brag about being under criminal investigation," but just wait and see.
The media will also be a huge winner. If we learned anything from the Mueller investigation, it is that special counsel investigations drive news coverage and fill television segments. Here comes an army of "former federal prosecutors" ready to attest that Jack Smith is a "no-nonsense prosecutor," who will "follow the facts where they lead," and "isn't afraid to go to trial." Did he interview a witness last week? "We don't know what the witness said, but here's what it might mean. . . " and so on, while 2023 slips away and the Iowa caucuses draw near.
It would be impossible to exaggerate how much breathless coverage there was of Robert Mueller's special counsel investigation, but as far as Trump was concerned it ended with a limp report that pathetically tried to say the President was guilty, without saying it in so many words. Asked to testify to Congress about the massive probe, Mueller first delayed and then spoke so vaguely, and with so many caveats that he may as well not have bothered. The criminal actions of the President were deferred down the food chain to lackeys who could be pardoned. Then they were.
The January 6th Committee has done an excellent job proving that having lost the election, Trump and his allies sought to remain in power via illegally pressuring state officials, fabricating and submitting false electoral votes, and inciting a violent and deadly attack on the U.S. Capitol. The attack occurred during the Constitutionally-mandated Congressional proceeding to recognize Biden's Presidency. The investigation is over – we know what happened. When Garland realized there was nothing left to do but indict the former President, he could have done it, or punted. He punted.
Garland receives steady and effusive praise from Department of Justice alumni. He's relentlessly described as principled and devoted to the Department "as an institution." He has moved up over four decades from line prosecutor to US attorney, to Assistant Attorney General, to federal judge, and now: Attorney General. Did he reach the top by doing the right things, or the safe things?
The new Republican Congress has made it clear that they will seek revenge against Biden's family (if you ignore the other links, click that one – they actually have a homepage titled "Biden family investigation"), Anthony Fauci and the DHS Secretary. Trump has made it clear that if he ever becomes President again, revenge will be the main point of his administration. Perhaps Garland doesn't want any piece of that. But regardless of his motive, the result is the same. Justice will be delayed, and then denied.
Regardless of what anyone says about the institution, the Department of Justice is run by a person. Criminality by powerful figures cannot be punished unless the people in positions of power are willing to take the risks that go with prosecuting it. Trump acts like he can get away with anything because no one has ever given him reason to think otherwise. Robert Mueller had a clean shot at Trump but in the end, he mumbled his way off stage, leaving Trump in place to incite an insurrection. Now, Merrick Garland gets an open-and-shut case laid on his desk, and he passed the buck. That's who he is.