RUTHFULLY YOURS

Former Trump attorney general Bill Barr is publicly urging incumbent Biden attorney general Merrick Garland to appoint a special counsel in the ongoing Biden investigation, which is said to focus on the president’s son Hunter.

The investigation has been ongoing since 2018 and has scrutinized shady foreign financial transactions that stretch back to at least 2014 (when Joe Biden was vice president and steering Obama administration policy in Ukraine, where Burisma, a corrupt energy company tied to the corrupt government, suddenly decided it was a fine idea to put Biden’s drug-addled son with no relevant experience on its board of directors and pay him a king’s ransom). As we observed in a recent NR editorial, Hunter is the least important Biden in the investigation, the central question of which must be “whether Hunter is a vehicle by which his father . . . indirectly cashed in on his political influence.”

Although I despise the pernicious institution of special counsel, I argued back in early December 2020, when it was clear that Biden had won the election and would be the next president, that the Biden investigation was primed for the appointment of one. That’s because there is no getting around two problems: (1) The Justice Department has a profound conflict of interest if it is in the position of having to investigate the president and/or his close family members, and (2) federal regulations instruct the attorney general that when the department is conflicted in this way, a special counsel (i.e., a scrupulous, experienced attorney from outside the government) is to be appointed.

Barr elected not to appoint a special counsel before leaving office right before Christmas 2020. In his position at that time, it was the right call and a prudent one.

It was right because there was no conflict in the Trump Justice Department’s conducting of the Biden investigation. Clearly, if Barr had made the appointment in anticipation of Biden appointees taking over the Justice Department, the move would have been seen as political — exactly the opposite of what Barr was trying to do in depoliticizing the DOJ.

It was prudently deferential of Barr to trust his successor, who turned out to be Merrick Garland, to make the call on whether there should be a special counsel. The case appeared to be in capable hands, led by David Weiss, the highly regarded U.S. attorney in Delaware (although, as I’ve warily pointed out, there are other cooks in the kitchen, principally including Tax Division at Main Justice). Garland did not displace Weiss, and that no doubt has a lot to do with Barr’s having handled things the right way.

But as Barr now points out, things have changed. The clearest recent indication of this is Senator Chuck Grassley’s letter this week to Garland and FBI director Chris Wray, raising disturbing whistleblower reports from within the bureau that, in the run-up to the 2020 election, high-ranking FBI officials colluded with Senate Democrats to portray credible, derogatory information about the Bidens as “disinformation” from foreign-intelligence services.

I will have more to say about those allegations over the weekend. (With Jack Butler ably pinch-hitting for Rich Lowry, we discussed the allegations in recording The McCarthy Report podcast yesterday.)

Meantime, Barr told the Federalist, “Intervening events, especially recent reports about FBI whistleblowers and the possible reach of the investigation, warrant adding the protections of special counsel status to assure that key decisions are made independently without political ‘favor.’”

To be sure, the regs give the AG leeway, in some situations, to avoid a special counsel appointment. But not in a situation like this. The idea is that an investigation may be retained within “the normal processes of the Department” if the conflict can be mitigated by recusing particular officials. When the president and his close family members are implicated, however, it is the Department of Justice, not just the AG or particular officials, that is conflicted. That’s when a special counsel is required.

Attorney General Garland should appoint a special counsel: a reputable former prosecutor who will have credibility with Republicans as well as Democrats, and who is appropriately skeptical of the institution of special counsel, and therefore won’t exploit the appointment to grandstand or unduly compromise the administration’s capacity to govern. There are such lawyers, and they would do a good job — no doubt beginning by maintaining Weiss and his staff so that the wheel needn’t be reinvented; and continuing by avoiding the Robert Mueller mistake of recruiting partisan critics of the administration to conduct the investigation. A good special counsel would avoid zealots, instead bringing in solid former prosecutors acceptable to both parties.

Garland also knows that, if the shoe were on the other foot, he would be calling on a Republican attorney general to appoint a special prosecutor for an investigation potentially implicating a Republican president — or at least such a president’s son — in criminal activity. Moreover, an outsider with rectitude would be more likely than the Justice Department to scrutinize the FBI’s behavior, which is among the most alarming aspects of this misadventure.

It’s time.