This is what the Special Counsel rule says:

[Ocelot II]

28 CFR § 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and -

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

https://www.law.cornell.edu/cfr/text/28/600.1

So: Garland has determined that a criminal investigation is warranted (and we know that an investigation has been in process for awhile already). He has also considered either the issue of a conflict of interest, or at least the appearance of one, or other extraordinary circumstances - the prosecution of a former president for actions done both while in office and afterwards, and who is now running for the presidency again - and that it would be in the public interest under the circumstances. Are any of these conclusions erroneous? Considering the wording of the rule - especially the statement that "The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel," - not may or can or should - did he have any other choice?

[claudette]

1. Where is the

"conflict of interest?" Where is the "appearance" of conflict of interest? Why don't I see it?

[Ocelot II]

3. The rule says conflict of interest or extraordinary circumstances.

The arguable conflict is that Garland was appointed by Trump's political opponent in 2020 and potentially in 2024 and could be accused of having some skin in the game (not credibly, but...). The extraordinary circumstances are obvious - a former president accused of extraordinary crimes, both during and after his term, and who is a declared candidate.

[claudette]

4. So then the question for me is

WHY didn't he do this sooner? Before Dump announced his run for the WH? Dump wasn't part of the 2022 election.

[Ocelot II]

6. You'd have to ask him; but I don't see that there will be any delay.

The new SC gets the investigation files and carries on; he doesn't have to start over. The matter of the stolen government documents can't proceed until the 11th Circuit rules on the special master matter; until that time those documents can't be used in evidence. I think they will decide quickly but that crime can't be charged by the DOJ or the SC until then.

[inthewind21]

5. The appearance

is it's the DOJ and Trump was a former President. BOTH part of the executive branch. The opposing party affiliations. And a whole host of other things. He did the right thing. Look a little closer.

[Ocelot II]

8. More specifically, that Garland was the appointee of TFG's 2020 political rival,

and might be his opponent again. The conflict argument, flimsy as it might be, is that Garland wants to keep his AG job which depends on Biden getting re-elected, so he would want TFG prosecuted to keep that from happening. This could explain why Garland didn't take this action until TFG declared his candidacy for 2024.

[iluvtennis]

34. + agree.

[wnylib]

28. The conflict of interest is so obvious

that I'm surprised that you missed it, especially since Garland specifically mentioned it in his announcement.

Donald Trump has announced that he is a candidate for 2024 to run against Joe Biden. Garland is a member of Biden's cabinet. Therefore, a conflict of interest.

[LAS14]

33. Crystal clear!! nt

[claudette]

43. Then as I said

Dump deliberately announced his candidacy now. Garland should have charged him with obstruction a long time ago and he would not run for office while on trial. Dump will get away with his crimes thanks to Garland. Why does running for office protect a nobody from v prosecution. I don’t get it.

[wnylib]

47. I don't have a law background, but

I can see from your post that you don't either.

But I do realize that investigations are not as simple as they seem to lay persons. With a slippery eel like Trump, you want to have him closed in with concrete evidence and witness testimony before going to trial.

Trump has delayed the process, not Garland. Trump has filed briefs and appeals over personal vs. government papers. It's easy for is to say, "Well, common sense says that he doesn't own the documents, so just charge him."

But the briefs and appeals processes have to go through through the courts first. Terms of ownership need to be legally established in the court decisions. A charge of obstruction would have to specifically name the items that Trump withheld. But those items are still in dispute in the courts, with a biased judge ruling for Trump, which DOJ then appeals and Trump's lawyers respond to. Etc.

It just isn't as simple, cut and dried as in the TV and book detective stories where a writer controls the plot.

[claudette]

48. You're right

I’m not a lawyer but I’ve followed this for a long time and there are many experts who have expressed what I and others here feel that should have and could have been done a long time ago.

Neil Kaytel, former Deputy Solicitor General, for one and Lawrence Tribe, Garland’s professor in law school for another. They were convinced Garland would charge Dump. Just because Dump said he would run in a primary election is NOT a reason to delay this as Garland said “in the public interest “

[wnylib]

50. Just because Garland appointed

a special prosecutor is not a reason to assume a delay.

There are legal experts on both sides of this. A prosecutor who personally knows Smith said in an interview with NPR that he does not expect a delay because a grand jury has already been reviewing evidence and Garland has laid the groundwork. Smith is a very experienced prosecutor who has won cases against other elected officials. He has the ability to pick up where Garland leaves off.

There IS a good reason for Garland to appoint Smith. It is the Special Prosecutor law which was posted in another thread. It requires appointing a special prosecutor when there is a conflict of interest for the AG. The conflict of interest is that Trump has announced his candidacy against Joe Biden for 2024. Garland is in Biden's cabinet.

[Pantagruel]

2. Special counsel here

was the obvious and just call. The "who" will always be open to debate but Smith seems fine having successfully prosecuted both high ranking GOP and Dem politicians.

[joshcryer]

7. And he appointed a guy who has a history of prosecting...

...politically connected individuals (cops and politicians).

[Ocelot II]

9. And war criminals.

[bluestarone]

10. TY for this Ocelot.

THIS tells me Garland did his homework, and was READY for TFG'S announcement. Plus it also tells me that the AG. feels that there IS enough proof to MOVE FORWARD with an INDICTMENT!! I now made my decision the Garland is our man!!! Again TY Ocelot!

[Turbineguy]

11. Trump will complain about political influence.

He's running for President so he can claim it and hopefully enough of his rubes will place themselves in the way.

[SheltieLover]

12. The only concern I have is the SC lives in TN.

[Ocelot II]

13. Why is that a concern?

[SheltieLover]

14. Who, by choice, would live in this red hellhole?

I do, but far from by choice.

[Ocelot II]

15. There are many Democrats in NC, who live there for many reasons.

And the issue isn't whether he's a Democrat, but whether he can be a fair, objective prosecutor. His record suggests that he can.

[SheltieLover]

17. NC is sane, generally. TN not so much, from my exper.

But glad to know he is able to be fair.

I want nothing more than absolute truth & justice.

Ty!

[Ocelot II]

18. Scusi, I meant TN. There are many Democrats in TN.

No conclusions should be drawn merely from a person's state of residence.

[Captain Zero]

31. Really,.maybe he has a horse farm there

Maybe he has family connections like he and/or his wife's aging parents live there. Maybe he likes the colors there in the fall. Did he go to Vanderbilt University?

Could be lots of reasons.

[SheltieLover]

35. Could be.

[SheltieLover]

37. Thx.

[catbyte]

30. Because that's where he was assigned? He was appointed to the office for Middle Tennessee in 2015

as an assistant prosecutor and was promoted in 2017. Then he went to The Hague. Maybe he has kids he didn't want to uproot -- he looks young enough.

[SheltieLover]

36. Good points, Cat

[Just A Box Of Rain]

16. You are right, if Garland has concluded that indictments

and prosecutions are warranted, he must act--to name a Special Prosecutor--as he just did.

I'm afraid too many people are not grasping the significance of this move.

[Ocelot II]

19. I am going to have to step away from DU for a little bit

because there's just too damn much stupid knee-jerking going on. Back later.

[Just A Box Of Rain]

21. I will miss your words of wisdom during your hiatus.

Know you are not alone.

[H2O Man]

20. Recommended.

Thank you.

[W_HAMILTON]

22. We learned from the last so-called special counsel...

...that the ultimate decision to indict lays with the Attorney General, so how the hell does this absolve any of those issues? In the end, it will still be up to Garland whether or not to indict. This just adds as unnecessary layer to the whole ordeal. Garland is bending over backwards to appease criminals. He's not simply following the law or even what may be deemed reasonably ethical -- he is BENDING OVER BACKWARDS TO APPEASE THIS CRIME RING.

Fuck that. I've been patient and supported the guy more than not, but this is probably the last straw for me. It's a completely unnecessary move.

[claudette]

24. I agree

I tried to understand all the arguments, but if the decision to charge is still up to the DOJ, then this SC is just a waste of time, in my opinion. I'm done. I don't think Dump will pay for his heinous crimes and this will only embolden other GOP presidents to do the same thing. I'm done.

[Emile]

25. +1

[pnwmom]

32. For one thing, it prevents the Republican-led House committees in January

from demanding all the documents from DOJ that they've only been able to request up till now. Did you know they've been trying to get their hands on documents related to the Mar a lago investigation?

With the Special Counsel, neither Biden nor the Republicans in the House will be able to dig into the ongoing investigation.

Here's a copy of the letter Jim Jordan has already sent, asking for (among other things) DOJ records related to the raid on Mar a lago.

https://republicans-judiciary.house.gov/wp-content/uploads/2022/11/2022-11-02-JDJ-to-Garland-re-responsiveness-politicization.pdf

As a part of this oversight, Committee Republicans have sent letters to Departmental components requesting documents and information on several issues,1 including but not limited to the Department’s targeting of journalists with Project Veritas, the shuttering of the Department’s China Initiative, the Department’s one-sided enforcement of the FACE Act, and the Department’s unprecedented raid on President Trump’s residence.

Our requests to you or your subordinates remain outstanding.

[W_HAMILTON]

38. No, it doesn't.

You think Republicans won't still request all of that information? You think "well, it's all with the Special Counsel now, so we can't give it to you" is going to fly? They'll still have to litigate it out. Republicans will just now subpoena the Special Counsel to come in and testify. This prevents none of that. Rest assured, they will still be getting harassed by Republican oversight.

[pnwmom]

39. They can request it but they can't demand it. The investigation has been taken out of their hands

and Biden's hands, and turned over to the SC.

They can subpoena the new SC and he can refuse to answer all their questions.

[W_HAMILTON]

40. So, they just send the subpoena to a different person.

And, no, he cannot refuse to answer their questions anymore than the DOJ or anyone else can refuse to answer a lawfully issued subpoena. And the subpoenas will certainly come. To Garland and now also the special counsel. It does nothing to actually avoid oversight, nor should it really.

[pnwmom]

41. They can't force anyone working for the Special Counsel to testify either.

https://www.emptywheel.net/2022/11/18/merrick-garland-names-war-crimes-prosecutor-jack-smith-to-oversee-trump-investigations/

It does have certain other advantages, other than making it easier to subpoena Ginni. It might even make it easy to subpoena Mike Pence.

First, this will make it very easy to refuse Jim Jordan’s demands for information about the investigation.

[W_HAMILTON]

42. Your welcome to trust her, but that's not the case.

You most certainly will see this special counsel subpoenaed by Republicans in the House. Mark my word. And they, just like anyone else, cannot lawfully disregard a legally obtained subpoena.

[pnwmom]

46. You're ignoring the Special Counsel regulations, which are discussed here.

They can subpoena him all they want. He only reports to the Attorney General.

https://www.brookings.edu/testimonies/attorney-generals-special-counsel-regulations/

5. Reports

The Attorney General’s regulations provide for reports from a special counsel to the Attorney General, and for reports from the Attorney General to Congress. For the former, there are to be annual (section 600.8(a)(2)) and closing (section 600.8(c)) reports by special counsel to the Attorney General. For the latter, there are to be reports from the Attorney General to the chairs and ranking minority members of the House and Senate Judiciary Committees (section 600.9) on appointment of special counsel, on the removal of special counsel, and on the conclusion of a special counsel’s investigation.

With regard to the annual reports from special counsel to the Attorney General, the regulation (section 600.8(a)(2)) provides that after the Attorney General receives the counsel’s report on “the status of the investigation” together with a budget request for the coming year, “[t]he Attorney General shall determine whether the investigation should continue and, if so, establish the budget for the next year.” The rule making order (at 64 Fed. Reg. 37040) stresses that “this annual report is intended to be only a status report” and “will not serve as a vehicle for ongoing supervision.”

At the end of a special counsel’s investigation, section 600.8(c) of the regulation provides that a special counsel “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” The special counsel’s obligation to file “a summary final report” is “limited.” The counsel’s report is to be “handled as a confidential document as are internal documents relating to any federal criminal investigation.” 64 Fed. Reg. 37041.

The rule making order notes (64 Fed. Reg. 37040-41) the concerns about final reports under the Act, both with respect to the incentive they had created to “over-investigate” a matter and the fact that they could “do harm to legitimate privacy interests” if it became public. But the order also states (64 Fed. Reg. 37041) that “it is appropriate for any federal official to provide a written record upon completion of an assignment, both for historical purposes and to enhance accountability—particularly a federal official who has functioned with substantial independence and little supervision.” It observed (id.) that a concluding report from special counsel would not be unique: “In major cases, federal prosecutors commonly document their decisions not to pursue a case, explaining the factual and legal reasons for the conclusions they have reached.”

As for “notifications and reports” (section 600.9) from the Attorney General to Congress, the order states (64 Fed. Reg. 37041) that the required reports would be “brief notifications, with an outline of the actions and the reasons for them.” As noted earlier, the Attorney General’s report at the conclusion of a special counsel’s investigation is to include (section 600.9(a)(3)) “a description and explanation” of any times in which the Attorney General countermanded a proposed action by a special counsel because it was “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

[claudette]

49. Me too

I’m done believing Dump will pay for his crimes. A president who incited an insurrection gets immunity while he runs for another term because the AG thinks it’s “in the public interest.” This is insane

[Emile]

23. Took Garland two years to determine that a criminal investigation is warranted, let that sink in!

Even after boxes of top secret documents were found, it still took Garland months to come to that determination.

[h2ebits]

26. Thank you for posting this. Always helps to get some facts.

[ancianita]

27. There it is. Thank you.

[Cha]

29. TY Ocelot for this Vitally

Necessary Information!

[claudette]

44. How is it in the public interest

to allow immunity to an ordinary citizen just because he wants to run for office. Dump hasn’t won the primary.

[iemanja]

45. What conflict of interest does DOJ have?

Other than they are Democrats? Are we to believe that a Democratic AG can never prosecute a Republican? The law does not say "the appearance of a conflict of interest." It says "a conflict of interest."

[wnylib]

51. K&R