When Attorney General Merrick Garland announced that he was appointing David Weiss as special counsel, he failed to mention § 600.3(c) of the Code of Federal Regulations entitled "Qualifications of the Special Counsel." These qualifications include the following: "The special counsel shall be selected from outside the United States government." (Emphasis added)
This requirement is the law. The regulations were authorized by Congress under 5 U.S.C. 301, 509, 510, 515-519. The attorney general is the chief law enforcement officer of the United States. It is certainly expected that he would obey the law in its entirety.
If he feels that somehow there is an applicable exception to this requirement, he is obliged to explain why. Particularly when the special counsel is appointed to investigate the son of the incumbent president, who appointed Garland, every T should be crossed and every I should be dotted. Here we have what appears to be a clear rule using the word "shall" rather than a more permissive word such as "may." The regulation on its face seems mandatory, and not advisory. If it is not, why not?
There are good reasons for this requirement. Special counsel is supposed to be independent of the current government, not an employee who serves as U.S. Attorney for Delaware and can be fired from that job by the president. He is supposed to look at the evidence through the eyes of an outsider.
Garland may well say that he had little choice but to pick David Weiss, because Weiss has been conducting this investigation for five years. But that sounds like a good reason for not appointing the man who already agreed to make what many regard as a sweetheart deal, limited to minor tax and gun violations. Whether consciously or unconsciously, Weiss is likely to want to defend that highly criticized decision – a decision that was (as I predicted) rejected by the judge because of its ambiguity.
As to the five years of investigation, they were conducted not by Weiss himself but by his underlings, who could be kept on if a new special counsel were to be appointed. But even if there were persuasive reasons for naming Weiss as special counsel, Garland had an obligation to explain his apparent violation of a binding regulation. He did not do so at his press briefing. He can still do so now. And he should.
Garland's defenders argue that he may have merely skirted, rather than violated, the law because the appointment was made under his general authority and not expressly under the relevant regulations. This is a stretch especially since he relied on those very regulations to give the special counsel the powers authorized by the regulations. In any event , we rightly expect our attorneys general to comply with both the letter and spirit of the law and not to cut sharp corners.
Democrats frequently say that no one is above the law. Yet they have been silent about Garland apparently placing himself above the law in choosing Weiss in violation of governing legal regulations.
Under our constitutional system of checks and balances, it is within the powers of Congress to summon Garland and ask him to explain why he believes he is justified in ignoring a federal regulation that seems to limit his authority to appoint special counsels. He was surely aware of the regulation and of its apparently binding application. Maybe his explanation will be acceptable. Maybe he will admit he was wrong. Maybe he will decline to respond. The public is entitled to hear him and judge for themselves.
His decision to ignore the regulation was surprising. Many, including this author, have high regard for Garland as a "by the book," politically neutral and fair-minded attorney general. Many of us strongly supported his nomination to the Supreme Court and condemned the refusal of the then-Republican majority of the Senate even to give a hearing based on the lame excuse that it was early in the presidential election year. (The Republicans then rushed Justice Amy Coney Barrett through just weeks before the election). But this decision, along with some others, has been extremely disappointing.
With few exceptions, attorneys general generally become more partisan after they are appointed. This should be expected because they are cabinet members who are supposed to be loyal to the administration they are serving. But they are also supposed to be entirely nonpartisan in conducting criminal investigations and filing charges. It is difficult if not impossible to perform this schizophrenic role.
The ultimate solution is to divide the Justice Department into two separate units: one political , whose incumbent serves at the pleasure of the president; the other a non-partisan prosecutor, who cannot be fired except with consent of Congress. If this were done, perhaps there would be less need for special counsel.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute, and is also the host of "The Dershow" podcast.