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Pence should NOT get a special counsel [1]

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Date: 2023-02-11  

There’s a lot of discussion going on about who gets a special counsel about in the docs case- mostly I see people coalescing around the idea that if everyone else has one Pence should too. This is a bad idea because it opens up the possibility of what we all should realize is the nightmare scenario.

Trump, Biden and Pence all have been found to have classified documents in their homes. This is obviously illegal but because of their position and/or possible lack of ill intent (hard to claim in Trump’s case) they may not face any legal repercussions for that act. Trump may yet face obstruction charges. But because it is illegal to take home classified documents there is always the possibility that some combination of them might be indicted.

The Nightmare Scenario

Trump walks

Pence walks

Biden indicted

That’s the worst possible outcome, right? But as far-fetched as this might sound, appointing a special counsel for Pence only makes it more likely.

Here’s why

Special Counsels are investigators appointed, in this case by the DoJ, to do investigations that the appointing entity feels like it can’t investigate without some conflict of interest. SC can do all the usual stuff, up to indicting people. They don’t have to ask DoJ permission. Other than that, there’s not a lot of difference between the DoJ and the SC handling a case. Special Counsel does not mean super extra tough investigator who will always get their man.

So now that the DoJ has appointed an SC for Biden and one for Trump, those indicting decisions are effectively out of their hands. Robert Hur and Jack Smith are presumably not coordinating their decision, so whatever they decide is what happens. They are, for all intents and purposes, wild cards. There’s been a lot of insinuation that Robert Hur is a Republican ergo he might be extra hard on Biden. If true that makes not appointing an SC for Pence that much more important.

Right now as it stands, the DoJ can avoid the nightmare scenario- if Trump walks, and Biden is indicted, the DoJ are well within their rights to indict Pence. Pence and Biden’s behavior are pretty much the same, and the DoJ doesn’t have any rule against indicting former VPs. And in that case, not indicting Pence looks downright biased and deeply stupid. Pence also getting indicted at least provides some cover to Biden.

If you’re of the mind that Garland won’t act in that situation, then the fix is in and appointing a special counsel isn’t really going to change anything anyway.

On the other hand, what if Pence gets a special counsel? Suppose said Special Counsel looks at the facts and says “nah, let’s not bother” — remember they aren’t talking, so Hur or Smith won’t know this is their thinking. Now what can the DoJ do? They can fire the guy and indict anyway- but that looks like retaliation. If you’re of the mind that Garland is a timid weenie that won’t ever go after Republicans, it’s far less likely they’ll decide to indict after a special counsel declines to indict. Keeping the decision to indict in DoJ hands provides the ability to mete out some fairness and provide some cover for Biden.

In other words, the DoJ should keep hold of one card to play. Appointing a Special Counsel for Pence gives away any leverage they still have. I know people want the same things to apply to Democrats and Republicans, but there’s no reason here to gift them a chance to beat us with this. We should all hope that Garland just investigates Pence through the usual channels.

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[1] Url: https://www.dailykos.com/stories/2023/2/11/2152295/-Pence-should-NOT-get-a-special-counsel

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