It seems to me that Garland has already preempted such balancing. In announcing the appointment of a special counsel, he spoke of the need “to make [prosecutorial] decisions indisputably guided only by the facts and the law.”

For Garland, then, it’s apparently out-of-bounds to consider the potential harm of prosecuting a former president or a current presidential candidate. But making that decision at the front end of the investigation doesn’t insulate Garland from complaints that he made it out of political animus towards Trump and/or a desire to help his boss, who’s likely to run for reelection.

Appointing a special counsel may insulate his findings of fact and law from claims of partisanship — or at least reduce the force of such claims. In the case of the Mar-a-Lago documents, however, the facts and the law are clear enough, I think. In the case of January 6, the facts and the law are also clear, although there is more room for interpretation.

Garland’s problem is that even when the facts and law are clear, prosecutors have considerable discretion. That discretion ultimately lies with Garland. He can’t hide really hide from exercising it, or refusing to .