Politics & Policy

Against a Special Prosecutor

Special counsel Patrick Fitzgerald outside a federal courthouse in 2007. (Reuters photo: Jason Reed)
Obama was right to resist all calls to appoint one, and Trump should follow suit.

The last thing the country needs is another out-of-control probe that won’t give us the answers we need about Russia and Trump.

President Donald Trump may have made a mess out of the firing of FBI director, but there’s one surefire way to make an already terrible situation worse. Whether you think Comey had to go or you believe that Trump’s decision is, as many on the left assume, proof that he is guilty of high crimes and misdemeanors, the last thing this already-fractured nation needs is the appointment of a special prosecutor.

If we are to ever get to the bottom of the charges about Russia and Trump, some sort of bipartisan special commission or joint congressional committee will be necessary to produce a report that has a chance of being believed on both sides of the aisle. But given our experience with special prosecutors, we know that the appointment of one would provide neither justice nor closure to a bifurcated nation. To the contrary, despite the chorus of calls for such a move, a special prosecutor would be the worst-case scenario: It would create a prolonged investigation that would do little or nothing to give Americans the information they need.

At this point, the merits of the decision to fire Comey have already become irrelevant to the national discussion. Given his inconsistent and often indefensible intervention in the 2016 presidential campaign, Comey’s forced exit may have been inevitable no matter who won the election. But Democrats are painting President Trump’s belated decision to terminate Comey as solely a reaction to the FBI’s investigation into Russian matters — claims of collusion between Moscow and the Trump campaign, and Putin’s interference in the election. The Democrats’ point of view has been strengthened by today’s reports, based on an anonymous source, that Comey was seeking to expand that probe.

Some on the left are treating Comey’s demise as the tipping point that will make their impeachment fantasy come true. This wishful thinking rests on their assumption that Trump must be guilty of collusion or some other awful crime that the FBI might uncover. Their assumption is a function of partisanship rather than tangible proof or even any reasonable interpretation of known facts. But so long as the full details about Russia’s attempt to interfere with the election are not aired, these kinds of theories about Trump’s malfeasance will continue to fester.

Given the partisan nature of opinions about Trump and Russia, it’s not likely that liberals will ever accept a verdict of “not guilty.” That’s true whether pronounced by Comey — the man Democrats were blaming for Hillary Clinton’s defeat only days ago — or anyone else. But given the typically ham-handed way Trump handled the firing — which included a disingenuous excuse from the president and which came shortly before Henry Kissinger and the Russian foreign minister visited the White House — it’s no good pretending this tempest can be diffused without some sort of bipartisan investigation.

In this context, a special prosecutor sounds like a reasonable solution. But even a cursory look at the history of special prosecutors teaches us that the country will be ill served by such an appointment.

In the last few decades, special prosecutors have been periodically appointed to deal with cases that were deemed too hot to handle for the Justice Department. Since no administration can be trusted to investigate itself, it stands to reason that what is needed is someone who can operate independently of the White House and even independently from the office of the attorney general. That makes good sense. But the well-established dynamic of special prosecutors is that instead of focusing on providing answers about the specific controversy that brought them to life, they quickly become attached to the extraordinary power they’ve been given.

That means that their investigation becomes not a means to the end for which they were purposed, but an end in itself. Few of those put in charge of what generally amounts to unlimited budgets and the full force of the federal government, without any effective check on their decisions, have ever been content to leave office without indicting someone for something, even if it is entirely unrelated to their original brief.

One could argue that the special prosecutor appointed to investigate the Watergate break-in was a success. President Nixon did his best to stymie the probe, and he ultimately fired prosecutor Archibald Cox; but the bipartisan outcry against the “Saturday Night Massacre” forced him to allow the appointment of a successor in Leon Jaworski, who redoubled the effort to wrest the truth about the scandal from the White House. Jaworski not only wound up punishing Nixon’s band of dirty tricksters and those involved in the cover-up, but his investigation also caused the president to resign.

Special prosecutors such as Iran-Contra’s Lawrence Walsh treated their appointment as a permanent sinecure that allowed them to go on ‘investigating’ until they found some hapless figure to indict.

The premise of the post-Watergate push for ethics legislation that created the office of independent counsel was that the country needed more such focused investigative efforts. But that’s not what happened. Instead, special prosecutors such as Iran-Contra’s Lawrence Walsh treated their appointment as a permanent sinecure that allowed them to go on “investigating” until they found some hapless figure to indict. The indictment often involved alleged lies in conversations with investigators rather than wrongful actions by the targeted individuals, who could then be pressured into plea-bargained sentences even while actual decision-makers escaped all accountability.

As long as Republicans were the main victims of such overreach, it didn’t bother Democrats. But when Kenneth Starr began nosing around the Clinton administration, disgust for the antics of out-of-control special prosecutors became a bipartisan affair. Initially appointed to investigate the Whitewater affair, Starr had the dull job of dealing with questionable Clinton real-estate investments. When that yielded no prosecutions, Starr moved on to a juicier probe involving Paula Jones and Monica Lewinsky. President Clinton lied under oath about his misbehavior, but Starr’s deep dive into the president’s illicit sex life disgusted the country. Starr ultimately did more harm to the Republicans cheering him on than he did to President Clinton.

In the wake of the Starr debacle, Congress, in 1999, declined to renew the original 1978 legislation empowering the special prosecutor’s office. But when the Justice Department faced controversies it couldn’t handle, Janet’s Reno’s successors (acting under regulations she promulgated as Clinton’s attorney general) have continued to appoint special prosecutors on their own authority, with similar results.

James Comey (acting as the attorney general because John Ashcroft had recused himself in this matter) appointed Patrick Fitzgerald to probe who had leaked the name of Valerie Plame, an active CIA officer, to the press during the national debate about whether Iraq had WMD during the lead-up to the U.S. invasion of that country. The name of the leaker — Deputy Secretary of State Richard Armitage — was uncovered. But Fitzgerald never prosecuted the well-respected Armitage. Instead, he used his plenary authority to indict and ultimately convict Lewis “Scooter” Libby, Vice President Dick Cheney’s chief of staff, on a questionable charge of perjury — this, in spite of the fact that Libby had had nothing to do with outing Plame.

These examples show that special prosecutors are rarely interested in giving the public the information that their efforts were supposed to produce. That’s why the Obama administration steadfastly refused to appoint a single such prosecutor during their eight years in office, even though there was no shortage of scandals: the IRS’s misuse of its power to harm conservative groups; the Fast and Furious gun-walking affair involving the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives; the massive fraud and incompetence at Veterans Affairs hospitals; the spying on James Rosen and other journalists; and, of course, Hillary Clinton’s e-mails. Obama knew that setting a prosecutor with unlimited power loose on his government would ultimately create, fairly or unfairly, some Democratic casualties, and he wanted no part of it.

No matter how scrupulous the efforts of the FBI and Congress to investigate Russia’s misdeeds, we all know that nothing short of Trump’s head on a metaphorical spike will satisfy Trump’s critics.

What the country needs is answers about Trump and Russia, not a probe that will last for years and probably never do much to resolve the public’s questions about the 2016 election. The Democrats are dreaming of a new Jaworski who will force Trump from office, but we’d be more likely to get mere indictments of midlevel Trump officials on technicalities that had nothing to do with Russia. There’s also the danger for Democrats that, once unleashed, a special prosecutor might probe Obama’s unresolved scandals, on the chance that they are somehow linked to the Russia investigations.

No matter how scrupulous the efforts of the FBI and Congress to investigate Russia’s misdeeds, we all know that nothing short of Trump’s head on a metaphorical spike will satisfy Trump’s critics. If a bipartisan effort to deal with this issue is necessary, let it be a commission like the one that deal with 9/11. A special prosecutor would encourage Democratic fantasies but do nothing to get to the bottom of an issue that might not involve the wrongdoing that Trump’s critics already take as self-evident fact.

READ MORE:

Editorial: The Comey Ouster

The Bipartisan Case Against James Comey

Comey: How We Got Here

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