NRPLUS MEMBER ARTICLE I do not like the institution of the special counsel. It is pernicious. It is of dubious constitutionality for all the reasons the late, great Justice Antonin Scalia explicated in his classic Morrison v. Olson dissent. (I say it is “of dubious constitutionality” rather than flatly unconstitutional because the special counsel, as a product of Justice Department regulations, is theoretically less objectionable than the analogous independent-counsel statute at issue in Morrison, which lapsed after the Clinton/Whitewater/Lewinsky scandal.) And in practice, it has proved to be every bit as insidious as Scalia predicted.

Of course, the question is not whether something is good or bad; it’s always good or bad as opposed to what?

Historically, I’ve seen that question as another mark against the special counsel, but that is because of my pro–Justice Department bias. In my experience (and it’s been 20 years since I was a Justice Department prosecutor), the DOJ strove to be nonpartisan. But while there have always been progressive ideologues in the department, which teems with graduates of elite American law schools, they took over the place during the Obama administration, and they are running it now. In their Alinskyite way, they mouth all the sonorous things about the rule of law, but their actions show that they view the law as a social-justice weapon rather than the foundation of a free and prosperous society. Philosophically, they do not believe in equal justice under the law; their mantra of “equity” is the antithesis of equality, and they are audacious in protecting their political allies while punishing their political foes — no matter how much law and DOJ norms have to be contorted for those purposes.

So, is a special counsel really worse than a politicized Justice Department? It depends. It’s possible to have a scrupulous special counsel, who can be better trusted with a politically fraught case than a politicized DOJ. On the other hand, a politicized Justice Department — and the Biden Justice Department is the worst in history on that score — would surely appoint a dependable partisan hack rather than a scrupulous, independent, competent former prosecutor if it were politically cornered and had to appoint a special counsel in a case involving a political ally, such as the president’s son.

Consequently, we’re in a pick-your-poison scenario when it comes to Hunter Biden.

I have repeatedly highlighted Biden attorney general Merrick Garland’s refusal to appoint a special counsel for the Hunter Biden case and the broader Biden-family investigation in which the president is squarely implicated. To be clear, this is not because I think Garland would appoint an appropriate special counsel — I’m confident that he would not. I have simply been illustrating that Garland has turned out to be a phony (to the extent he has pretended to care about the Justice Department as an institution) and a partisan Democrat who has no compunction about insulting our intelligence.

I take no pleasure in saying that because I do care about the Justice Department as an institution. When Garland was appointed, I said he was the best AG we could hope for from a modern, woke-progressive-dominated Democratic administration. That didn’t mean he would be good; it meant we could reasonably hope that he would be better than the progressive prosecutors Democrats have managed to install around the country, and in critical federal posts (e.g., DOJ’s Civil Rights Division and the enforcement arms of the FTC and SEC). Like any conservative Republican, I would never choose Merrick Garland as AG. But elections have consequences, Biden was going to get to appoint an AG, and we could have done a lot worse than Merrick Garland — I was actually expecting him to pick someone more in the Keith Ellison mold.

Garland has proved to be much worse than I thought he’d be. I’ve stressed his failure to appoint a special counsel in the Biden corruption probe, not because I think he’d appoint one, but to show how worried the administration is about the president’s centrality to that probe — which, of course, is about how his family cashes in on his political power, compromising him and thus our country through bribes from foreign actors connected to corrupt and anti-American regimes.

Undeniably, the special-counsel regs demand that Garland appoint a special counsel because (a) there is a substantial basis for a criminal investigation, and (b) the Justice Department is beset by a profound conflict of interest — here, one that that prevents the Biden DOJ from ethically investigating President Biden and his family. Moreover, Garland has appointed a special counsel for Donald Trump, even though the regs did not call for any such thing, there being no conflict of interest between the Biden DOJ and Trump. Indeed, the Biden DOJ was investigating Trump for almost two years before Garland appointed Jack Smith. So why did he appoint Smith? Because Garland is a political hack. He and Biden knew Trump was going to campaign against Biden on the allegation that Biden was using the Justice Department as a political weapon against Trump; Garland thus calculated that a special counsel would allow the president and his AG to pretend that they were totally detached from the prosecutions of Trump that they brought Smith in to carry out — notwithstanding that Smith reports to Garland and exercises power that belongs solely to Biden.

Describing the Trump special-counsel appointment is illustrative, nothing more. It’s not done in the vain hope of persuading Garland to appoint a special counsel in the Biden corruption scandal. It is done to shine a light on Garland’s hypocrisy. He is a partisan, and he is running a politicized Justice Department.

That’s shown even by his grudging appointment of Robert Hur as special counsel in President Biden’s classified-documents scandal (which — surprise! — has disappeared from news reporting even as Trump’s three-dozen-count felony prosecution for classified-document retention ramps up). Garland did not appoint Hur in January 2023 because the regs required it. He appointed Hur because his then-recent November 2022 appointment of Smith had been triggered by Trump’s Mar-a-Lago documents scandal. Even though DOJ had been investigating that for months without need of a special counsel, Garland duplicitously claimed that Trump’s announcement that he was a presidential candidate against Biden suddenly created a conflict (even though he’d have us believe that the Biden DOJ’s investigation of Biden’s son for conduct in which Biden is implicated somehow does not create a conflict). The too-clever-by-half gambit blew up on Garland when it emerged that Biden, who had made clear that he, too, was a candidate in the 2024 presidential race, had himself been hoarding classified documents for decades. That is, Garland appointed Hur because the politics of the moment demanded it . . . and then the matter predictably evaporated.

I point out these things not because I’ve deluded myself into believing that, by spotlighting his crass partisan scheming, mere commentators can shame Garland into doing his job and appointing a scrupulous prosecutor in the Biden investigation. Given the history, I’d be genuinely stunned by that. The point is rather that Garland actually does care what people think of him. Ergo, his adamant refusal to fulfill his obligation to appoint a special counsel is a testament to his realization that the Biden presidency could not survive a typically thorough, competent DOJ investigation. If Garland is going to stay on the team, then he has no choice but to hold an indefensible line, at the expense of his reputation.

Which brings us, as ever, to the question of what is to be done?

There are no good options. On Thursday, Chris Christie aptly labeled the Biden probe a “charade,” but he is only theoretically correct in saying it cries out for a special counsel. At this late hour, that may be impractical and, under the circumstances, it is a second-order concern.

What’s the first-order concern? The lack of an indictment.

Because of the quite intentional way the Biden Justice Department has slow-walked the probe, and the Hunter criminal case in particular, critical counts — namely, the evasion of taxes in connection with Burisma’s 2014 and 2015 payments to Hunter to bribe then–vice president Biden — have already been lost to the statute of limitations. For prosecutorial purposes, the pertinent time frame of the Biden influence-peddling scheme (with its related potential crimes of tax fraud, bribery conspiracy, money laundering, failure to register as a foreign agent, and Hunter’s gun crime) is from 2014 through 2019. The statute of limitations for the relevant tax offenses is six years (and the charges must be approved by Tax Division at Main Justice — which would take time even if Tax Division weren’t run by Biden appointees); the statute of limitations on other relevant federal crimes is five years. The Biden administration is going to be running the Justice Department until at least January 20, 2025.

You do the math. As a practical matter, the only way to stop the ticking of the statute-of-limitations clock is to file an indictment. That’s why the Biden Justice Department hasn’t filed one, even though Hunter’s crimes have been known for years; it is why Garland can’t afford to appoint a special counsel, who would file an indictment as the first order of business. As time goes by, charges are lapsing. The 2016 tax year will soon join 2014 and 2015 as time-barred. So will Hunter’s gun crime, on which the statute of limitations lapses in October, just weeks from now.

That is why, in our editorial yesterday, we suggested ratcheting up public pressure for the immediate filing of an indictment charging every provable tax and gun charge that can be brought against Hunter Biden. Naturally, it would be better to indict every provable charge of any kind that can be brought against anyone connected to the Biden corruption scandal. But that’s a pipe dream. As I will explain in a separate column, the documents filed in connection with this week’s failed Hunter plea convincingly establish that the Biden Justice Department’s main objective is not to give Hunter a sweetheart deal (that’s just part of it), but to protect the president. So let’s at least start with what we might — might — be able to accomplish. Let’s be real: It will be a heavy enough lift to exert enough political pressure to get the Biden Justice Department to indict Hunter on the tax and the gun charges when, patently, the Biden DOJ’s strategy has been to run out the clock — and Garland is on the cusp of achieving that goal.

If Garland can be pressured to appoint a special counsel, we can expect that he will appoint a hack. But even if he were to shock us and appoint an able, ethical former prosecutor who could be trusted to check his or her politics at the door, there wouldn’t be anything left to prosecute unless an indictment was filed, pronto.

As for the more important matter of political accountability, because the Justice Department’s Biden probe is a sham, the only thing that has worked to this point — not enough, but somewhat — is congressional investigation. Clearly, if Garland were to appoint a hack special counsel, the Justice Department, FBI, IRS, and other relevant government agencies would claim they could not provide any testimony or documentary evidence to House committees, rationalizing that doing so would compromise their joke of an “ongoing investigation.” Whether or not a special counsel is appointed, House investigators, with whatever assist they can get from the GOP’s Senate minority, must be ready to ratchet up the pressure on defiant Biden officials — hold up appointments, block legislation, and invoke the powers of contempt and impeachment.

And maybe the toughest part: Congressional Republicans have to convince the public that they are doing this because it’s essential to do, not because it may help Donald Trump.

That’s a lot of moves down the line, though. For the moment, if there’s no indictment, there’s no prosecution. If there’s no prosecution, there’s no vehicle to pressure witnesses to talk. And if witnesses don’t talk, there’s no case.