Breaking news! Classified documents were found in former Vice President Pence’s home. These documents were discovered by Pence’s teams. But if the experience with Biden has taught us anything, the FBI’s search could turn up more documents.
So what’s Merrick Garland to do? Mike Pence could very well be the presidential candidate in 2024 – a candidate to run against Trump and potentially Biden. And we know that Garland waited for Trump to make an announcement before appointing a special prosecutor. Is Garland appointing another special prosecutor to investigate Pence? Is Garland waiting for Pence to announce? What a mess.
I highly recommend Jack Goldsmith’s guest essay in the times today. He explains the potential problems of coordination between the two current special prosecutors.
Even if the Trump and Biden investigations turn out to be factually and legally quite different, as it appears they might be, the dual structure of the special counsel will make it difficult for the department to portray its decisions as principled. Normally, in such high-profile comparative investigations, formal reporting to the Attorney General would ensure that the same legal and discretionary judgments influence decision-making in the two cases. But those decisions are now delegated to special advisers Jack Smith and Robert Hur, who have no incentives or even a mechanism to coordinate decision-making.
Mr. Hur and Mr. Smith will take many public steps along their investigative paths, including a final determination of whether any potential criminality was present and what, if anything, to do about it. These decisions will inevitably raise questions about differential treatment. However, neither special counsel will be in a position to explain how his decisions are consistent with the other’s. Nor can the Attorney General apparently do this, since key decisions are formally outside his control as long as they are within the department’s broad guidelines. If Mr. Garland ends up defending the consistency of the decisions, some may question the degree to which the special counsels were actually independent.
Now, there may be a third special counsel investigation to coordinate.