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The biggest flaw in the GOP’s reaction to the special counsel news

If the Justice Department has reason to believe Donald Trump committed crimes, what would his Republican allies have federal law enforcement do?


After Attorney General Merrick Garland appointed Jack Smith to oversee the criminal investigations into Donald Trump, the former president had plenty of ridiculous things to say about the new special counsel and the process that led to the appointment. But the Republican also delivered a message to his party about his expectations.

Trump declared at Mar-a-Lago on Friday night, “You people have to fight. You have to fight. You have to be strong.” Hours earlier, he said something similar to Fox News, insisting that the Republican Party should “stand up and fight” on his behalf.

It’s likely that the former president won’t be entirely satisfied with the partisan response. While the GOP was vociferous in its condemnations of the Mar-a-Lago search in August, party leaders have been relatively muted in response to the special counsel news. Senate Minority Leader Mitch McConnell issued a critical statement on the Mar-a-Lago search, for example, but the Kentucky Republican said nothing in response to Friday’s news about Smith.

That said, Trump was not without allies. NBC News reported:

“Has there ever been a more politicized and weaponized DOJ in American history?” tweeted Rep. Andy Biggs, R-Ariz., who challenged House Minority Leader Kevin McCarthy, R-Calif., for their conference vote this week for speaker and lost. Sen. Ted Cruz, R-Texas, who ran against Trump in the 2016 GOP presidential primary, said President Joe Biden has “completely weaponized the Department of Justice to attack his political opponents.”

For her part, Rep. Marjorie Taylor Greene called for Garland’s impeachment and again raised the prospect of defunding federal law enforcement.

For now, let’s put aside the factual errors these Republicans made, including the baseless idea that the White House has “weaponized” the Justice Department. (If Cruz and Biggs are looking for an example of an administration that actually politicized law enforcement, I’d refer them to Trump and his team. In fact, it was literally last week when Trump’s former White House chief of staff went on the record to complain about Trump trying to use federal law enforcement against his perceived political opponents.)

Instead, I have a different kind of question for the former president’s knee-jerk congressional allies: What would these Republicans have the Justice Department do at this point?

GOP members such as Cruz and Biggs haven’t seen the available evidence, haven’t spoken to witnesses, haven’t read any transcripts, and don’t know exactly what was retrieved from Trump’s glorified country club. They’re nevertheless convinced that the appointment of a special counsel is outrageous because, well, it just is.

Stepping back, when federal law enforcement has reason to believe an American citizen engaged in criminal misconduct, officials have a couple of options. They can disregard the suspected crime, concluding that the evidence isn’t strong enough to secure a conviction, or they can pursue possible criminal charges.

As this relates to the former president, the Justice Department believes there are allegations against Trump that are serious enough to warrant two ongoing criminal investigations. Trump and some of his more sycophantic allies are whining, not because they consider the evidence unpersuasive, but because they apparently believe the corrupt former president should be left alone.

But this isn’t a position to be taken seriously. An American citizen is suspected of breaking the law. Republicans who deem this disgraceful should necessarily consider the obvious follow-up question: What should federal law enforcement do in this situation? Members such as Cruz and Biggs can choose from a narrow menu of options:

  1. They can recommend that the Justice Department ignore the suspected crimes.
  2. They can recommend that the Justice Department pursue the suspected crimes.
  3. Or they can recommend some kind of special exception to our legal system, concluding that alleged crimes committed by former presidents don’t count.

What’s it going to be?