After it was announced that former Vice President Mike Pence had documents at his home in Indiana, questions began about whether Attorney General Merrick Garland would appoint a special counsel to navigate this case as well.
MSNBC's Nicolle Wallace began her Tuesday show by saying that someone should probably search the homes of Former Secretary Mike Pompeo, former National Security Adviser John Bolton and former United Nations Ambassador Nikki Haley for classified documents.
All of it causes problems for Garland, said former FBI general counsel Andrew Weissmann.
"You just can't have a special counsel every single time a issue comes up," Weissmann said. "You have to remember, it is not a crime to have classified documents in your possession if you don't know it. It can be a mistake. It can be something that raises national security issues. But it's not always worthy of a criminal investigation. So, there is one thing that Merrick Garland could do here. And that is he could go the route that he did with President Biden and have somebody do a preliminary look. That's not actually opening a criminal investigation. It's a preliminary assessment. That is one option that is available to them."
He explained that the issue is not that nothing Biden did would necessitate the special counsel. It's Biden's position as Garland's boss that is the reason for the special counsel.
"I mean the Department of Justice is supposed to be able to do investigations of Democrats and Republicans and the reason for the special counsel is sort of regulations is to give extra public confidence when you're investigating the person who you report to," Weissmann continued. "I can see this in the interim solution, especially because it really appears that Mike Pence's counsel learned from what the current president did and the former president did."
Wallace said that as an everyday public person, there's a question about all of the things that Trump has been able to get away with.
"We got to see the confidence that led to a court-approved search on Donald Trump's house. And then there were crimes ticked off in that mob boss goes to jail for. Nothing happened. And now the whisper that is starting to seep into public commentary is Biden can make it hard to make that case," she continued, noting that the Pence case brings into focus a legitimate comparison. Without a special counsel for Pence, why would one be needed for Biden, she asked.
Weissmann said that it would be the issue Garland faces. He predicted that surrogates of the White House would likely be using the Pence comparison to say that appointing a special counsel was too premature and a communications failure, but there was no obstruction or illegal behavior.
"So it is going to put front and center that issue," said Weissmann. "With respect to Rob Herr, the dye is cast. That is already in place. It just cannot be that we're going to have a slew of special counsels. It just way too distracting to the body politic and this sort of policy issue we should be worried about."
Life just got a whole lot harder for Merrick Garland www.youtube.com