Attorney General Merrick Garland faces a difficult choice: whether to appoint a Pence special counsel

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By Evan Perez, Kevin Liptak and Hannah Rabinowitz, CNN

The discovery of classified documents at former Vice President Mike Pence’s home immediately raised questions at the Justice Department about whether yet another special counsel investigation was in the offing. For now, the department’s course isn’t clear, people briefed on internal deliberations say.

The Pence documents are now the subject of a preliminary review by the Justice Department’s national security division and the FBI. The findings of that review will determine what the Justice Department does next, officials say. No final decision has been made on whether the Pence documents merit another special counsel.

Pence has not publicly announced whether he plans to run for president, and top Justice Department officials view that as a major difference between him and former President Donald Trump and President Joe Biden, both intended 2024 presidential candidates.

The Trump and Biden cases over their handling of classified documents raised the appearance of a conflict of interest for Attorney General Merrick Garland and the department because Trump is now campaigning to replace Biden, who appointed Garland to his job. In both cases, Garland tapped special counsels to investigate.

The three probes have put Garland and the Justice Department in a quandary as another presidential campaign looms. Appointing a special counsel for the Pence case would fuel criticism that the Justice Department is seemingly incapable of handling sensitive matters without bringing in outside help, while declining to do so is likely to invite the opposite criticism that not all cases are being treated equally.

The Biden team, which had hoped to avoid appointment of a special counsel by emphasizing its cooperation with the Justice Department, is closely watching the Pence case. So far, the White House has stopped short of publicly calling for a special counsel to investigate the Pence matter.

“That’s for the Department of Justice to decide,” White House press secretary Karine Jean-Pierre said this week when asked whether a special counsel should be named.

Privately, however, many of Biden’s allies have suggested the cases are similar — and should be treated similarly by the Justice Department. They note Biden and Pence responded similarly to finding government records — by immediately notifying the National Archives, which contrasts with Trump’s months-long refusal to return government documents.

Some Biden associates also have pointed out Pence is a likely candidate for the 2024 Republican presidential nomination — further underscoring similarities in their circumstances. The Pence documents discovery was received with a sense of relief by many on Biden’s team, because it seemed to underscore the possibility that classified documents could be taken inadvertently.

Garland has long been averse to appointing special counsels, believing the department’s career agents and prosecutors are best positioned to handle even the most politically sensitive investigations.

But he cited the Justice Department regulations governing possible conflicts of interest, when just days after Trump announced his latest run for office, Garland appointed Jack Smith to oversee Trump investigations, which are also looking at efforts by the former president and his allies to overturn the 2020 election results.

A similar appearance of conflict arose in the Biden probe, Garland has said, prompting his appointment of Robert Hur as special counsel. Garland reiterated the sentiment when he announced Hur’s appointment earlier this month, saying that the “the extraordinary circumstances here” require a special counsel and emphasizing the department’s “commitment to both independence and accountability in particularly sensitive matters.”

Asked about criticism from Republicans and Trump that the department is treating Biden differently, Garland pushed back. “We do not have different rules for Democrats or Republicans,” Garland said on Monday, just days after the FBI searched Biden’s home in Wilmington, Delaware.

Then, hours after the Pence documents story broke on Tuesday, Garland declined to answer a question about whether these cases should be handled differently as more people come forward.

And now administrations dating back to President Ronald Reagan are under scrutiny, as the National Archives has asked former presidents and vice presidents to re-check their personal records for any classified documents or other presidential records.

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