WHAT WE NEED IS A CREDIBLE PROSECUTOR. Republicans, whether in the White House or on Capitol Hill, do not seem to appreciate how much they may be undermining what they say they want — a serious investigation of the Clinton Foundation and such related matters as the Uranium One transaction, the interplay between the foundation and the operation of the State Department during Secretary Clinton’s tenure, and the question of whether that interplay explains the use of the improper private email system and the destruction of tens of thousands of emails.
The president has been railing about his own Justice Department’s apparent inaction (after signaling, post-election, that he did not want to see the Clintons further investigated and prosecuted). A group of House Republicans has taken up this cause and is pushing for the appointment of a special counsel. In essence, it is a tit-for-tat maneuver: There is a special-counsel probing Trump ties to Russia, they reason, so why not a special-counsel to probe Clinton ties to Russia? This suggests a basic misunderstanding about what triggers a special-counsel investigation: There must be potential offenses that warrant investigation as to which the Justice Department has a conflict of interest that would make its conducting the investigation inappropriate. Preliminarily, we should note that there is no such thing as an independent counsel. In our constitutional system, prosecution is an executive power, so even special counsels ultimately report to the Justice Department’s leadership. That being the case, we should never have a special counsel unless one is absolutely necessary.
It is pernicious to have a prosecutor who is assigned to make a case on a single target (or set of targets). These prosecutors are insulated from the pressures of an ordinary prosecutor’s office, where cases have to compete for resources and only the meritorious ones are pursued. Thus, the sorry history of the special counsel (and its predecessors — the “special prosecutor” and “independent counsel”) is empire-building, investigations that go on for years, and cases involving trivial charges often far removed from the suspected offense that was the original rationale for appointing the special counsel. I argued against the appointment of a special counsel to probe Trump-Russia because, for all the chatter about collusion, no concrete offenses warranting a criminal investigation were identified. (Recall that Robert Mueller was appointed to take over a counterintelligence investigation, not to investigate specific crimes. As I’ve repeatedly contended, this was outside the regulations.) But let’s assume for argument’s sake that there were such offenses. It would then be proper to have a special counsel, because otherwise the administration would be investigating itself. If the president and/or his campaign is the subject of the investigation, then the entire Justice Department — run by presidential appointees and subordinate to the president — has a conflict of interest. This situation does not currently obtain with respect to the Clintons. It is commonplace for the Justice Department to conduct corruption investigations involving members of the president’s opposition party (as well as members of the president’s own party who are not among the Justice Department’s executive-branch superiors). There is no structural reason to believe the Justice Department is unable to conduct a fair investigation of the Clinton Foundation. (There may be a credibility problem, which we’ll get to momentarily.) And importantly: We do not know that the Justice Department is not already conducting a fair investigation.
When the Justice Department is functioning properly, it is not speaking publicly about pending investigations, nor is it consulting with the White House about them. It may be that we haven’t heard about any investigation because there is not anything to say at the moment. It was widely reported a year ago that the FBI was looking into Clinton Foundation activities — I wrote about it, here, when it was reported that the Obama Justice Department was blocking the bureau from access to key evidence. On this point, a letter sent to the House Judiciary Committee by Assistant Attorney General Stephen E. Boyd, reported on by the New York Times, is instructive. In pertinent part, the Boyd letter states: Senior prosecutors will report directly to the attorney general and the deputy attorney general, as appropriate, and will make recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation require further resources, or whether any matters merit a special counsel. [Emphasis added.] This implies that there are relevant matters currently under investigation, and that these matters are being explored in the normal course, without the need of a special counsel. That is as it should be.
As the Times points out, Attorney General Jeff Sessions has recused himself from matters related to the 2016 election, and that recusal is apparently being expansively construed to include matters related to the Democratic nominee, Mrs. Clinton, even if such matters had no direct connection to the 2016 election. This recusal should not trigger a special-counsel appointment. It is not unusual for attorneys general to be recused from some investigations owing to conflicts of interest. (Often, the conflicts stem from the AG’s prior work as a private lawyer representing business clients who become enmeshed, for whatever reason, in investigations.) When that happens, the deputy attorney general becomes the AG for purposes of the investigation. In the event, such conflicts have little bearing on how cases are handled because the investigation is led by the FBI with the assistance of a district U.S. attorney’s office that does not have a conflict. (And if it does, each U.S. attorney’s office has procedures to screen out a conflicted prosecutor; or the Justice Department can assign the case to a different district U.S. attorney who has no conflict.)
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