Merrick Garland didn’t run away from a tough decision—he made one.
And as with the Mueller investigation, America is in uncharted territory again for one reason: Trump keeps stress-testing the guardrails of U.S. democracy. He did it by communicating, through his campaign, with Vladimir Putin’s government in the lead-up to 2016. He did it by taking eleven separate actions that Mueller identified as evidence of possible obstruction of justice when he was president. He did it by withholding congressionally appropriated aid from Ukrainian President Volodymyr Zelensky pending an announcement of an investigation into his rival for the presidency, Joe Biden, in 2019. He did it in 2020 and 2021 through a multitiered effort to thwart the election results and the peaceful transition of presidential power. And he did it by illegally taking presidential records from the White House—some of them top secret—and refusing to give them back for eighteen months upon leaving office.
Undoubtedly, it’s the separation of powers that drove Garland’s decision to appoint Jack Smith as special counsel. Article II of the Constitution lodges the power to appoint cabinet-level officials in the president with the advice and consent of the Senate. Although the Constitution says nothing about removal of officials, the Court has long construed the power to remove as necessary to effectuate the appointment power. The theory is commonsensical: How can the head of a huge executive apparatus, with whom the buck stops under the Constitution, do his job if he can’t fire bad actors? Because Biden can fire Garland at any moment, Garland is ultimately beholden to Biden for his job.