TOPLINE POINTS

• Special counsels have been appointed on numerous occasions to investigate the actions of senior government officials.
• Special counsels operate with more autonomy than normal federal prosecutors.
• Independence from the political process can be essential when seeking to hold senior government actors accountable.

INTRODUCTION

Lawmakers in both houses of Congress have increased their demands that the U.S. Department of Justice (DOJ) appoint a special counsel to investigate the actions of U.S. Attorney General Merrick Garland. The calls to appoint a special counsel come amid whistleblower allegations that the attorney general himself may have influenced the decision-making process related to the investigative inquiry into the business dealings of Hunter Biden, the son of President Joe Biden.

The controversy deepened recently with the revelations of Internal Revenue Service investigator Gary Shapley, who testified before the House Ways and Means Committee and challenged Garland’s congressional testimony that the Delaware U.S. Attorney, David Weiss, had full autonomy over charging decisions into the Hunter Biden tax evasion investigation (Stanage, 2023).

Sen. Ted Cruz (R-TX), advocating on his podcast for the appointment of a special counsel, was quoted in the Washington Times saying, “It is time. The Department of Justice needs to appoint a special counsel to investigate Merrick Garland for obstruction of justice and perjury.” He added, “At this point, the evidence that Merrick Garland personally committed multiple felonies is growing greater” (Picket, 2023).

Of course, appointing a special counsel to investigate the actions of Attorney General Garland and the DOJ would fall to none other than the attorney general himself, placing him in the awkward position of having to outsource an investigation into his own conduct and that of the DOJ that he oversees.

The appointment of a special counsel, while not particularly common, is also not unheard of, especially when controversial matters of public interest demand fair and impartial adjudication. The recent past has seen several notable instances of the appointment of a special counsel. This raises the question of whether one is now needed to investigate Attorney General Garland and the actions of the DOJ.