GOP claims of government weaponization draw pushback from experts

Ilya Somin, a constitutional law professor at George Mason University’s Antonin Scalia Law School, made a similar point.

“It’s very hard to argue that [President Biden] has simply used the special counsel system as a partisan weapon, given that a special counsel has been appointed to investigate Biden himself,” Somin said in a Friday interview.

The Justice Department in January appointed Robert Hur to investigate President Biden in connection with a separate trove of classified documents found at Biden's home in Wilmington, Delaware. While Trump was in office, he appointed Hur as U.S. attorney for the District of Maryland.

The White House has distinguished Biden’s situation from Trump’s in that Biden surrendered the documents when they were found and in that he voluntarily allowed a search of his home. In Trump's case, however, the FBI was forced to serve a warrant at his Florida resort because of his team's meddling.

 “This is not Joe Biden,” Tobias said in an interview Friday, “who seems to be in striking contrast to what Trump did. People need to keep that contrast in mind.”

Beyond the dueling bipartisan investigations, Somin contended that the severity of Trump’s alleged conduct — taking classified documents from the White House and misleading the authorities — was sufficiently severe to justify both the special counsel investigation and the resulting charges.

Somin observed that, under the current special counsel system, there will always be the temptation for presidents to abuse independent investigators to achieve political ends. To this end, he pointed to a Trump-era probe that he said “may have been for at least somewhat political reasons.”

Just last month, the special counsel in that case, John Durham, published a report that was highly critical of the FBI for investigating the Trump campaign's ties to Russian interference in the 2016 presidential election. Notably, however, Durham's investigation was ongoing when Trump left office, but the Biden administration allowed it to run its course. Somin said. “I think the Biden administration has, at least so far, not been abusive [of the special counsel],” Somin said.

The Department of Justice is the agency tasked with appointing special counsels under regulations approved by Clinton-era Attorney General Janet Reno in 1999. Before that, a provision in the 1978 Ethics in Government Act, also known as the Independent Counsel Act, had established formal rules for standing up an independent investigator. The law was a response to the Watergate scandal, during which the embattled President Richard Nixon fired the special counsel investigating his involvement, despite both then-Attorney General Elliot Richardson and his deputy resigning in protest over the order.

The special counsel standards laid out in the Ethics in Government Act expired before the turn of the century and were replaced by procedural regulations promulgated by Attorney General Reno. There is no federal law governing the appointment of a special counsel.

According to DOJ regulations, the attorney general is responsible for setting the investigator’s jurisdiction and selecting an individual that they believe can conduct an impartial investigation. Both the president and the attorney general have the authority to fire the special counsel.

Tobias emphasized, however, that the independent investigator is usually not beholden to the whims of the executive branch. “Historically, the notion has been that the [special counsel] doesn’t serve at the pleasure of the attorney general or the president,” he said.

The Justice Department has conducted several investigations using a special counsel since the regulations shifted in 1999. The first use came that same year, when former Attorney General Reno used independent counsel to investigate the FBI for its role in an ill-fated siege against the Branch Davidians cult in Waco, Texas.

A special counsel was utilized again in 2003 under the Bush administration, as the DOJ investigated the outing of a covert CIA officer by a Washington Post columnist. In 2017, Robert Mueller was appointed as special counsel to look into Russian interference in the 2016 election.

Trump in recent days has referred to the charges against him as “the Boxes Hoax.”

“I never thought it possible that such a thing could happen to a former President of the United States, who received far more votes than any sitting President in the History of our Country,” Trump wrote on his social media platform Truth Social. “I AM AN INNOCENT MAN!”

Trump will answer the charges Tuesday afternoon in Miami.

Tobias, meanwhile, commended Smith’s work in the Mar-a-Lago investigation.

“Jack Smith has done what he was charged with doing,” Tobias said, “and did it in the most professional way possible, with really great skill and finesse, and has a team of really high-quality people who have done what was needed to be done and what they were asked to do.”

According to Somin, the special counsel, while not perfect, is the best tool the government has right now for holding its leaders accountable.

“There’s an inherent problem in administrations investigating high-ranking officials within their own orbit — especially the president himself — and also with them investigating prominent political opponents,” Somin said. “But we also can’t simply say that the president should never be investigated, or that prominent politicians or presidential candidates will never be investigated or charged, because sometimes they do commit crimes or do things that at least deserve investigation.

“For some 50 years since Watergate, people have been trying to think of new ways to do it, but every way they’ve come up with has either been a political non-starter, or in the case of the Independent Counsel Act, both Democrats and Republicans ultimately became dissatisfied with," Somin added.

Follow @BenjaminSWeiss

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