La Jolla’s Harry Litman comments on Merrick Garland naming a special prosecutor in cases involving Donald Trump. Image via Twitter

Two days after La Jolla’s Harry Litman theorized a special counsel being named to investigate Donald Trump, the attorney general did just that.

Attorney General Merrick Garland on Friday appointed Jack Smith as a special prosecutor to look into Trump’s involvement in the Jan. 6 insurrection and the taking of White House documents to Mar-a-Lago, the former president’s Florida home.

Litman, a former deputy U.S. assistant attorney general and U.S. attorney, wrote a 900-word opinion piece in the Los Angeles Times on the new realities of investigating Trump in the wake of his telling a 2024 presidential run.

“DOJ regulations provide that the attorney general ‘will appoint a special counsel’ when 1) criminal investigation of a person is warranted ; 2) the investigation would present a conflict of interest or other extraordinary circumstances; and 3) it would be in the public interest for a special counsel to take the reins,” Litman wrote.

He added: “The first two criteria are met in Trump’s case.”

On MSNBC Friday, commenting on the special counsel decision, Litman said: “The reason I wrote that op-ed is it seemed obvious to me — once Trump got into the ring — there was a conflict of interest” of the DOJ under Biden investigating a presidential rival to Biden.

He said Garland is a “guy who first and foremost follows the law, and he would have seen that, too.”

Litman, 64, conceded that Garland would have weighed the issues without having read similar sentiments from him, Washington Post columnist Ruth Marcus and former U.S. Attorney (and TV pundit) Chuck Rosenberg.

If Trump is indicted, Litman said, “every motion, everything for two years will be the story of the day in the [presidential] campaign — and it’s going to be a complete cosmic weirdness.”

But Litman, in his column, said a special counsel wouldn’t “cure the suspicions” of a nation “mired in partisan rancor and mistrust.”

“The toxic consequences of seven years of Trump’s domination of the political landscape make it inevitable that any special counsel would be demonized by the MAGA crowd, not to mention prominent elected Republican officials who play along with them, as a political hack,” he wrote.

The Litmans at home in the early days of the pandemic. Photo by Eric Blau

But Litman concluded that Garland shouldn’t name a special counsel.

“[Garland] needn’t permit Trump’s candidacy to divest him of day-to-day, and ultimate, responsibility for probably the most important action the DOJ ever has undertaken; and since he needn’t, he shouldn’t,” he wrote.

Garland said he named Smith, a war crimes prosecutor, to serve as special counsel to oversee Justice Department investigations into Donald Trump involving the former president’s handling of sensitive documents and the aftermath of the 2020 election.

Smith said he would be fast and independent in his work.

“I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate,” Smith said in a statement released by the department.

Garland’s announcement came three days after Trump, a Republican, announced he would run for president again in 2024. Garland said Trump’s candidacy, as well as Democratic President Biden’s stated intention to run for re-election, made the appointment of a special counsel necessary.

Smith will oversee the investigation into Trump’s handling of government documents after leaving the White House last year and the probe into attempts to interfere with the peaceful transfer of power following the 2020 election, Garland said.

“Appointing a special counsel at this time is the right thing to do,” Garland said at a news conference.

Smith, a political independent, is currently chief prosecutor for the special court in The Hague, tasked with prosecuting war crimes in Kosovo. He previously oversaw the Justice Department’s public integrity section and worked as a federal and state prosecutor in New York.

Garland said he would begin his work as special counsel “immediately.”

This would be the Justice Department’s third special counsel to be appointed since 2017 to handle a politically sensitive case. Such prosecutors typically have a high degree of independence to avoid potential conflicts of interest.

Former FBI director Robert Mueller was appointed in 2017 to oversee the federal investigation into Trump’s 2016 presidential campaign and its contacts with Russia. In 2019, John Durham was appointed to investigate the origins of the FBI’s probe into Trump’s 2016 campaign.

The White House was not involved in the decision, an official said, speaking on condition of anonymity.

Biden did not respond to multiple shouted questions from reporters about the appointment during his only public appearance of the day.

Reuters’ reporting by Sarah Lynch and Rami Ayub; additional reporting by Trevor Hunnicutt.



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Ellen Bullock