Politics & Policy

A ‘Special Prosecutor’ Is Still a Bad Idea in a Criminal Investigation of Clinton

(Carlos Barria/Reuters)
Such an appointee would enable Clinton and Obama to bury the scandal.

You can set your watch by it: Whenever a scandal arises or intensifies in the scandal-plagued Obama administration, alarms go off calling for a “special prosecutor,” and I am constrained to respond (see, e.g., here) that this well-intentioned idea is a bad one. So it is with what even the Obama White House now concedes is the criminal investigation of Hillary Clinton.

Here at National Review, Dan McLaughlin renews the call for President Obama to appoint a “special prosecutor” to take over the criminal investigation of the former secretary of state and presumptive Democratic presidential nominee. Echoing the Transom’s Ben Domenech, he contends that Obama’s endorsement of Clinton’s candidacy, announced on Thursday, is somehow a game changer.

While I have great respect for both of these thoughtful commentators, I could not disagree more. Special prosecutors are unconstitutional if truly independent, and counterproductive if not so. They are a poor excuse for avoiding the Constitution’s remedy for corrupt public officials: impeachment and disqualification. Moreover, it is simply not true that Obama’s endorsement of Clinton meaningfully ratchets up his conflict of interest; that conflict was already profound because we have known for months that Obama is implicated in Clinton’s lawlessness.

Any Prosecutor Appointed by Obama Would Not Be Credibly Independent

To their credit, Messrs. McLaughlin and Domenech avoid the fatal error usually made by “special prosecutor” enthusiasts — the error that explains the scare quotes around the term. When commentators call for a “special prosecutor,” they usually mean an independent prosecutor — as in: independent of the executive branch. As we shall see, however, such an office would be unconstitutional, because prosecution is an executive function.

McLaughlin and Domenech concede that this is a problem but convince themselves that it can be gotten round if President Obama, in a display of great integrity, appoints a credible lawyer who, though technically subordinate to the president, would be given de facto independence to conduct a thorough, let-the-chips-fall-where-they-may investigation. It would be hard to fathom a suggestion more removed from reality.

Obama has not only presided over a Justice Department so corrupt and politicized it would make the Nixon administration blush. He is, to repeat, complicit in Mrs. Clinton’s misconduct (a point we’ll cover in a bit). It is simply preposterous to believe that, after governing lawlessly for seven and a half years, Obama would suddenly transform into a pillar of rectitude who unleashes a credible, truly independent investigation of Clinton that could cost his party the presidency while besmirching his legacy.

Add to this implausibility a second practical problem: Even if Obama would appoint someone who is not a reliable hack, installing a new prosecutor into a complex investigation at this stage would ensure that no decision on indicting Mrs. Clinton would be made until well after the November election. The ostensible purpose of the appointment — holding Clinton accountable, staving off the election of a felon — would be defeated.

McLaughlin appears to believe that these admittedly “intractable” problems might be overcome if Obama simply appoints FBI director James Comey as the special prosecutor. To be sure, Comey (a former Justice Department colleague of mine and a friend for nearly 30 years) is a highly experienced and capable former prosecutor, respected on both sides of the political aisle. Thus, the theory appears to be that he would act independently and make the indictment decision in short order. (In this scenario, we are evidently to assume that the decision to indict would be made before Mrs. Clinton is formally nominated in a few weeks; that Democrats would be dissuaded from nominating her if she is indicted; that Clinton would voluntarily relinquish the nomination if indicted; and that Obama would not pardon her rather than risk all these problems plus a prosecution that would make him look bad.)

While ostensibly permitting the FBI to investigate Clinton, the president has taken steps to pressure Comey and frustrate the FBI’s ability to do its job.

Let’s put aside both that Comey is just a step down from Attorney General Loretta Lynch in the Obama administration chain of command — i.e., as a practical matter, shuffling Comey’s and Lynch’s responsibilities would only elevate form over substance, since the indictment decision would still be Obama’s call. Let’s also put aside the reality that Obama would never appoint Comey, whose independent streak has already annoyed Obama in the past. Indeed, as we shall review, while ostensibly permitting the FBI to investigate Clinton, the president has taken steps to pressure Comey and frustrate the FBI’s ability to do its job.

The point of having independence between the investigation (run by the FBI) and the decision to indict (which belongs to the attorney general) is to ensure that the latter checks the work of the former. That is why the FBI investigates but has no authority to prosecute, grant immunity, etc. If Obama vested the investigative and prosecutorial functions in a single official, Comey, it would create a conflict that Clinton could exploit: arguing that Comey filed an indictment, which Lynch would never have approved, in order to justify the resources he invested in the investigation. Clearly, this is all far-fetched, because Obama would never allow Comey to indict Clinton. It is ironic, however, to argue that we need a special prosecutor because of the president’s conflict of interest but then suggest that the answer is to create conflict of interest for the FBI director.

Plus, the job of the FBI director is crucial. I remain pleasantly stunned that Obama appointed someone of Comey’s high caliber to fill it. If, as the fantasy scenario holds, Obama were to appoint Comey as special prosecutor, that’s a full-time, two-year (minimum) job. Comey would have to be replaced as FBI director by Obama — or, unbelievably, perhaps by Clinton. Do we really want Jim Comey replaced by the kind of radical Obama or Clinton would appoint now that they are in “let’s empty the jails” mode?

‘Special Counsel’ Is an Unconstitutional Device for Avoiding the Constitution’s Remedy for Abuse of Power: Impeachment

The Constitution, as Justice Scalia explained in his classic, prescient Morrison v. Olson (1988) dissent, vests all executive power in the president — not some of it, all of it. Moreover, as I outline in Faithless Execution, the Framers rightly insisted that the executive function of enforcing the laws had to be strictly separated from the legislative function of enacting them. That is why, no matter how blatant an offense appears to be, Congress has power neither to conduct its own criminal prosecution nor to direct that a criminal prosecution be conducted by the executive branch.

Consequently, any federal prosecutor serves at the pleasure of, and answers to, the president. It is the president’s power being exercised, not the prosecutor’s. Thus, there can be no independent prosecutor, an inconvenience that is not overcome by whiting out independent and superimposing the vaporous adjective special. Good-government types are blind to this stubborn fact because they instinctively believe we are governed by law. The Constitution, however, is principally a political document, not a legal one. Its genius is not the pronouncement of a legal code (a task it leaves that to the political process); it is the division of political authorities such that the executive and legislature check and balance one another.

Any federal prosecutor serves at the pleasure of, and answers to, the president. It is the president’s power being exercised, not the prosecutor’s.

If an executive official, such as Mrs. Clinton, abuses power, the Constitution’s remedy is that she be impeached. The Framers rightly believed that impeachment is (to quote Madison) “indispensable” to the operation of our form of government, in which Congress must be able to check executive lawlessness. My main purpose in writing Faithless Execution was to explain that the impeachment remedy does not become any less indispensable just because Congress (responding to the public’s apparent indifference to executive lawlessness) shrinks from its responsibility to resort to it in appropriate cases.

Congress may rationalize abdicating its responsibility to check executive abuse by telling itself that we have “evolved” beyond impeachment — that we can replace it with chimeras like the “special prosecutor.” But to do that, we would have to adopt a different constitutional system. The one we have is designed in a way that quite intentionally and expressly relies on impeachment. So when Congress signals that it will not impeach, it is inevitable that a rogue executive will become more lawless — the evil does not go away just because John Boehner, Paul Ryan, and Mitch McConnell decide that impeachment is passé. Interestingly, Democrats understand this because they are quite comfortable wielding raw power; hence, a Republican secretary of state guilty of a bare fraction of what Mrs. Clinton has done would have been impeached in a heartbeat.

Significantly, the Framers also believed that the political remedy against officials who abuse power — viz., the divestment of power and disqualification from wielding it in the future — was far more important than the legal remedy of prosecution against the official in his or her personal capacity. Whether a rogue is sent to prison is of far less consequence to the health of the republic than is ensuring that the rogue is never again permitted to wield power. That is why the Constitution expressly calls for the impeachment of such officials, limits the penalty for impeachment to removal and disqualification from holding office in the future, and provides that an impeached official may still be separately prosecuted in the judicial system for any criminal offenses.

Of course, because the Constitution prudently makes impeachment difficult (requiring a two-thirds supermajority vote in the Senate to remove an impeached official), it is rarely used. Nevertheless, impeachment is supposed to be used in egregious cases — and Mrs. Clinton’s case is surely that. And though this proposition has never been tested, the Constitution appears to contemplate the impeachment even of former officials — such as Mrs. Clinton — for abuses of power committed while in office. If the House impeaches and the Senate convicts, the sanctions include not just removal from power but, prospectively, the “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” (Art. I, sec. 3). Indeed, there is some precedent for the proposition that disqualification of an official requires only a simple majority vote in the Senate, not the supermajority needed for removal.

One last point on impeachment that, as we shall soon see, is particularly relevant in Clinton’s case. While the Constitution provides for the impeachment of subordinate executive officials (such as cabinet members), the point of reposing all executive power in the president is to make the president singularly accountable for all maladministration by executive-branch officials. That is, the Framers designed the system to pressure the president to fire and prosecute any rogue subordinate.

The idea is that a president who is derelict in this duty perforce becomes responsible for the subordinate’s abuse of power, because the power actually belongs to the president, not the subordinate. The Framers assumed that a president who colluded in lawlessness this way would be impeached. That may sound fanciful to modern ears, but the Framers were actually more realistic than us moderns: They would have laughed at the suggestion that a president who was culpable in his subordinate’s abuse of power would turn around and appoint a “special prosecutor” to investigate his own culpability.

As one who believes that law-breaking public officials should be prosecuted, I admire the good intentions of the “special prosecutor” enthusiasts. Alas, as one who believes that fidelity to our Constitution is the best response to abuse of power, I find it maddening to watch “special prosecutor” enthusiasts aid and abet congressional Republicans in pretending that impeachment is a bygone relic.

I understand the problem: The Framers made impeachment a political remedy, not a legal one. If there is not broad public support for the removal and/or disqualification of a rogue like Mrs. Clinton, it will not be possible to persuade the Senate to convict her at an impeachment trial — notwithstanding that she oozes corruption and has violated an array of felony laws, while intentionally undermining laws enacted to make public officials accountable. But as Democrats know, such public support does not spontaneously appear. As Richard Nixon or Alberto Gonzales could have told you, flawed executives are chased from office when Congress aggressively outlines their misconduct or incompetence for the public. That is what drums up support for their removal and disqualification, making it politically untenable for them to hold office.  

Congress’s responsibility to rein in executive abuse of power may neither be delegated to nor accomplished by a special prosecutor who answers to the presidential administration that is being investigated. Today’s Republican-controlled Congress does not want to do its job, because its leaders calculate that they are not capable of explaining the case to the public — owing to incompetence and/or media hostility. They misconstrue the Bill Clinton impeachment fiasco as a cautionary tale against ever resorting to impeachment, even when the abuse of executive authority is profound (as it was not in Bill Clinton’s case but is in Hillary’s). Sadly, the result of Congress’s default is that the public remains uninformed about and thus indifferent to executive lawlessness. Since we shrink from following the Constitution, we get the dysfunctional government we deserve: one that encourages executive abuse of power. This problem is more likely to be exacerbated than cured by a “special prosecutor.”

Nothing Has Changed: Obama’s Serious Conflict of Interest Has Been Obvious for Months

It has always been the case that President Obama is the ultimate decision-maker when it comes to indicting Clinton. It has been patent for several months that Obama is laboring under a severe conflict of interest. Obama’s endorsement of Clinton changes nothing.

As I discussed here four months ago, the Obama administration has conceded that there are at least 18 e-mails between the president and his then–secretary of state, Mrs. Clinton. These exchanges were conducted via Clinton’s private e-mail system. They took place under the following circumstances:

‐Obama’s own executive order (EO 13526) on classified information directs that certain categories of information be automatically classified because their unauthorized disclosure is presumed to damage national security. These categories of information include foreign relations, foreign activities of the United States, military plans, and intelligence activities. That is, these automatically classified categories are virtually certain to have been implicated by these e-mail exchanges between the president and his secretary of state. Thus, by knowingly conducting the exchanges on an unsecure, non-government e-mail system, Obama engaged in the same criminal recklessness that Clinton did, albeit on a smaller scale.

‐As I’ve previously recounted, when Obama’s Justice Department prosecuted former CIA director David Petraeus for mishandling highly classified information, expressly included among this classified information were notes of “defendant DAVID HOWELL PETRAEUS’s discussions with the President of the United States of America.” By the way, have you heard Mrs. Clinton’s oft-repeated red-herring “defense” that the classified e-mails she mishandled could not really have been classified because they were not “marked” as such? Well, Petraeus’s classified journals were not marked “classified” either. But this was no bar to his prosecution — so frivolous would such a claim have been that it was apparently not even raised. High-ranking officials with security clearances like Obama and Clinton are well aware that discussions between the president and his subordinates regarding such matters as foreign relations, foreign activities of the United States, military plans, and intelligence activities are automatically classified. Failing to secure that information on a protected government system for storing and transmitting classified intelligence is a crime.

President Obama and his subordinates know exactly what is in these e-mail exchanges with then–Secretary Clinton. Obama has refused to disclose them, with the administration publicly rationalizing that releasing them would compromise “the president’s ability to receive unvarnished advice and counsel” from his subordinates — a remarkable explanation that implicitly acknowledges that the e-mails involved matters of monumental sensitivity that should be kept secret.

If you want to hold Hillary Clinton accountable before the election, it would be appropriate for Congress to commence impeachment hearings that publicly air her abuses of power.

Plainly, most if not all of the Obama–Clinton exchanges were presumptively classified. Yet, Obama and Clinton knowingly conducted them not only outside the government’s secure system for classified information but over a non-government system — which is a no-no even for unclassified exchanges between government officials.

The president is banking on the Democrat-friendly media’s continuing disinterest in these e-mails. It’s a shrewd calculation — after all, have you heard much about them since we discussed them here back in February? Obama induced the sleepy White House press to stay that way by vaguely invoking executive privilege, shielding the Obama–Clinton e-mails from public scrutiny. The media have failed to press the obvious question: If, as the administration claims, these e-mails should remain secret, shouldn’t they be deemed classified — just like the scores of other Clinton e-mails that have been withheld from the public because they contain highly sensitive information? Why doesn’t Obama classify them?

The answer is clear: If Obama were to classify them, that would be tantamount to an admission that Obama has done the same thing Clinton is being investigated for: He has mishandled classified information by discussing it on a private e-mail system highly vulnerably to hacking, outside the government’s classified system, which officials know they are supposed to use because it is hardened against hacking.

Besides that, let’s consider the narrow example of the September 11, 2012, Benghazi massacre of four American officials. We now know that, while the Obama administration was studiously misrepresenting to the public that the coordinated terrorist attack was really a protest run amok over an anti-Muslim video, Secretary Clinton was frankly informing foreign leaders that a terrorist attack had occurred, was in communication with Obama about the attack while misinformation was being fed to the public, and joined with Obama in the determined effort to continue blaming the attack on the video.

So quite apart from his apparent complicity in Clinton’s recklessness regarding classified information, and from his patent knowledge of Clinton’s improper use of private e-mail in lieu of the government system, President Obama is manifestly a beneficiary of Mrs. Clinton’s scheme to avoid public accountability — the scheme the FBI is investigating. She systematically conducted government business in a manner designed to flout government recordkeeping and disclosure laws. Thanks to that systematic misconduct, government records that might tend to show Obama’s collusion in the Benghazi fraud have been shielded from public and congressional review.

Obama has not only suppressed his correspondence with Clinton — notwithstanding his professed dedication to transparency and her professed desire that the American people get to see her e-mails (except of course for the 32,000 she tried to destroy). The president has also given public apologias for Clinton.

The president has proclaimed of Clinton’s illegal e-mail system (which was undoubtedly hacked by foreign intelligence services) that “this is not a situation in which America’s national security was endangered.” He has proclaimed of Clinton’s state of mind that “she would never intentionally put America in any kind of jeopardy.” Such statements, under circumstances in which Obama is well aware that the FBI is conducting a criminal investigation in which it must prove that Clinton endangered national security and had a criminal state of mind, are blatantly improper. They are transparent efforts by the president, to whom the FBI and Justice Department answer, to pressure investigators to clear Clinton but make it look like the investigation was thorough and objective.


In sum, the fact that Obama has now formally endorsed Mrs. Clinton for president is, at best, a marginal exacerbation of what was already a blatant conflict of interest. Nothing has changed. Obama is not just deeply conflicted by the unavoidable facts of the situation — viz., that he is both the political leader of the party trying to elect Clinton and the executive power ultimately responsible for prosecuting Clinton. He is also a participant in the activities for which Clinton is being investigated. If she has violated the law, there is a distinct possibility that he has as well.

If you really want to hold Hillary Clinton accountable before the election, it would be appropriate for Congress to commence impeachment hearings that publicly air her abuses of power and expose any executive official who was complicit in them. Unfortunately, in this political environment, with the current set of Republican leaders in Congress, what would be appropriate is inconceivable.

Therefore, the best course is for the FBI to be allowed to finish its investigation, for Congress and the media (hah!) to encourage the FBI to do so quickly, and for Congress to use its oversight authority to try to force public disclosure of any recommendation the FBI director makes — since, as I have previously explained, no law requires the attorney general to act on the recommendation, she could just sit on it.

Yes, that is a very imperfect plan. It is far superior, though, to the appointment of a “special prosecutor.” Such an appointee would not be independent and would be much more likely to help Clinton and Obama bury the scandal than to help the voting public understand it.


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