Politics & Policy

No New Special Counsel

House Judiciary Committee Chairman Bob Goodlatte (right) talks with Rep. Trey Gowdy during a House Judiciary Committee hearing, November 14, 2017. (Aaron P. Bernstein/Reuters)
Sessions should appoint a Justice Department prosecutor to investigate the investigators.

‘What’s good for the goose . . .” is more an understandable impulse than a useful rule of thumb in legal controversies, particularly legal controversies in which an error has been made.

The White House and congressional Republicans have watched in ire as the Trump administration has been tied in knots by the no-boundaries Mueller investigation. “Okay,” they’re thinking, “now, it’s payback time.” There appear to have been highly irregular investigative tactics used in probing the Trump campaign — particularly, but not exclusively, by the Obama administration. Why not, then, appoint another special counsel to squeeze the squeezers? Why not turn the tables?

It’s a bad idea.

Original Sin: A Prosecutor but No Crime
Deputy Attorney General Rod Rosenstein made a foundational error in appointing Robert Mueller to be special counsel to investigate . . . well . . . um . . . come to think of it, that was the error: The investigation has no parameters, and thus no limitations.

Investigations conducted by prosecutors are supposed to be rooted in known crimes — or, at the very least, articulable suspicion that known crimes have occurred. Under the governing regulations, to justify the appointment of a special counsel, those crimes must form the basis for two salient findings: (1) that the Justice Department has a conflict of interest so severe that it cannot conduct the investigation in the normal manner, and (2) that it is necessary to appoint, from outside the Justice Department, a quasi-independent prosecutor. This special prosecutor is to be given a grant of investigative jurisdiction limited to the crimes that the Justice Department is too conflicted to investigate — and no other crimes, unless the special counsel explicitly requests, and the Justice Department grants, an expansion of jurisdiction. (See here, where I address Paul Manafort’s claim that his indictment violates regulations limiting special-counsel jurisdiction.)

As we have repeatedly observed (see, e.g., here, here, and here), Rosenstein failed to adhere to the regulations, appointing Mueller to conduct a counterintelligence investigation. Because counterintelligence is not lawyer work, and because the objective of counterintelligence is to gather information about a foreign power, not to build a criminal case against a suspect, prosecutors are not ordinarily assigned to counterintelligence investigations. In the Mueller appointment, then, counterintelligence is camouflage for something that should never happen: a special counsel unleashed to hunt for crimes to prosecute despite the absence of known crimes warranting appointment of a special prosecutor.

Collusion with Russia? That is so two tweets ago!

So now, predictably, we have this absurdity: A special counsel, whose purported mandate is to probe Russian interference in the 2016 election and any possible Trump-campaign “collusion” in it (whatever that means), is looking into whether Jared Kushner’s financial woes influenced Trump-administration policy towards Qatar.

Collusion with Russia? That is so two tweets ago!

Mind you, there may be good reasons to probe Kushner’s possible self-dealing as an adviser to his father-in-law, the president — and, for that matter, Kushner’s reported failures to disclose significant foreign contacts during his background check (which clearly complicated his ability to qualify for a security clearance). Similarly, it may well be that scheming by Paul Manafort and Richard Gates with a Kremlin-connected Ukrainian political party in the dozen years prior to the 2016 campaign should be scrutinized. The point, however, is that these matters have nothing to do with Russian interference in the election. There is no reason our $29 billion–per–annum Department of Justice could not have investigated them without the administration-crippling appointment of a special counsel.

Now it is Republicans on the verge of the same mistake, which would inevitably lead to similar abuses and the paralysis of critical government functions.

The Goodlatte-Gowdy Call for a Special Counsel
Two House Republican heavyweights, Judiciary Committee chairman Bob Goodlatte of Virginia and Oversight Committee chairman Trey Gowdy of South Carolina, have penned a letter to Attorney General Jeff Sessions and Deputy Attorney General Rosenstein seeking the appointment of another special counsel. The quasi-independent prosecutor they envision would

review decisions made and not made by the Department of Justice and the FBI in 2016 and 2017, including but not limited to evidence of bias by any employee or agent of the DOJ, FBI, or other agencies involved in the investigation; the decisions to charge or not charge and whether those decisions were made consistent with the applicable facts, the applicable law, and traditional investigative and prosecutorial policies and procedures; and whether the FISA process employed in the fall of 2016 was appropriate and devoid of extraneous influence.

I’ve highlighted “the investigation” because, among other problems with the letter, it is not clear whether the chairmen are referring only to the Trump-Russia investigation. Clearly, that elusive probe (taken over by Mueller in May 2017) is the main focus of the letter. But Goodlatte and Gowdy also mention the possibility that bias infected “decisions to charge or not charge”; that suggests that they also have in mind the Clinton-emails investigation — a probe involving the other 2016 presidential candidate, in which no indictment was filed despite strong evidence of felony wrongdoing. Though I do not agree with the Goodlatte-Gowdy proposal of a second special counsel, the chairmen are wise (if I am reading them right) to combine consideration of the Clinton and Trump probes. The disparate treatment they were given — kid gloves for the former, unrestrained zeal for the latter – is among the most disturbing elements of the controversy.

The patent flaw in the Goodlatte-Gowdy proposal is the same one that plagued Rosenstein’s appointment of Mueller: There is no triggering crime.

Before explaining my disagreement with them, I must first observe that Chairmen Goodlatte and Gowdy, along with House Intelligence Committee Chairman Devin Nunes (R., Calif.), continue to perform an invaluable service in exposing investigative irregularities and demanding accountability. Where I part company with them is not over whether we need an investigation; it is over whether that investigation should be done by a special counsel.

The patent flaw in the Goodlatte-Gowdy proposal is the same one that plagued Rosenstein’s appointment of Mueller: There is no triggering crime. As I’ve repeatedly shown, that is the condition precedent for a special-counsel appointment under the governing regulations. I suspect that is why Goodlatte and Gowdy do not discuss the application of the regulations —  they breezily claim that “the relevant Federal regulations provide” for the appointment of a purportedly “independent Special Counsel,” but they do not try to demonstrate that this is so.

It is not so.

Investigative Excesses Are Usually Not Crimes
It is very bad for investigators to exhibit bias, to allow bias to taint their exercise of investigative and prosecutorial discretion, to depart from Justice Department guidelines, and to provide unverified information to the Foreign Intelligence Surveillance Court (FISA court). But none of these things is a crime – at least, not obviously so.

There is no criminal statute addressing bias on the part of agents and prosecutors. We all have biases. It would not be possible to have bias-free investigators. Even if investigators unprofessionally act on their biases, this does not necessarily mean the investigative decisions they make are indefensible on the merits — so proving prejudicial bias is difficult.

As for departing from Justice Department guidelines, such guidelines typically come with a disclaimer that deviations from the guidelines are not grounds for criminal or civil action. Indeed, such a disclaimer appears at the very beginning (introductory section 1-1.000) of the U.S. Attorney’s Manual:

The Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice.

Why do we have guidelines and manuals? Because we want our law-enforcement officers to operate within clearly legitimate boundaries, not constantly to test the margins of their lawful authority. Having guidelines encourages this. It provides a standard for internal discipline when excessive or abusive conduct occurs. But if deviations from guidelines were to become a basis for legal action, including criminal prosecution, one of two things would happen: The guidelines would be repealed, or they would be rewritten in a broadly permissive manner, endorsing investigative behavior that might be justifiable in exigent circumstances but would be grossly inappropriate the rest of the time. If we want to have meaningful guidelines, the trade-off is that guidelines departures cannot lead to lawsuits — although they must lead to administrative discipline, including termination if the misconduct is serious enough.

Finally, it is a serious dereliction for the FBI and Justice Department to provide the FISA court with unverified information, such as the allegations in the Steele dossier (which, based on what is publicly known at present, were essentially uncorroborated). As explained in a letter Chairman Nunes sent to Attorney General Sessions last week, it is a violation of the FBI’s Domestic Investigations and Operations Guide to include anything other than “documented and verified information” in FBI applications for FISA-court surveillance warrants.

All that said, there is a big difference between (a) giving a court information that is unverified because it has not been adequately corroborated and (b) knowingly giving a court information that is false. The former is abusive; the latter is felony obstruction of justice.

It is highly unusual for FISA surveillance applications to be debated in public, as have the ones that targeted former Trump campaign adviser Carter Page. It is not at all unusual, however, for FBI agents and prosecutors to be accused of including inaccurate information in applications for criminal-law surveillance warrants — claims nearly indistinguishable in kind from the claim that the FBI and Justice Department included dubious Steele-dossier allegations in the FISA warrant applications. These criminal-law claims are such a commonplace that our Fourth Amendment jurisprudence has established tests for evaluating them — asking such obvious questions as: whether the allegedly inaccurate information was, in fact, inaccurate; whether, if inaccurate, the information was necessary to the showing of probable cause; and whether the inaccurate information was provided to the court in good-faith error (e.g., an agent reasonably credits an informant who turns out to be wrong) or in a conscious effort to deceive.

In the vast majority of instances where wrong is done, the wrong involves an overzealous error made in good-faith belief that incriminating evidence would be found.

If a court has been given faulty information in a criminal case, the remedy is that evidence derived from the warrant is suppressed. Concededly, this “fruit of the poisonous tree” doctrine does not have a counterintelligence analogue — once our intelligence agencies know something they should not have learned, we can’t tell them to “un-know” it. The point, nevertheless, is that the remedy of suppression is preferable to subjecting officials to punishment because, in the vast majority of instances where wrong is done, the wrong involves an overzealous error made in good-faith belief that incriminating evidence would be found. Thankfully, intentional frauds on the court are unusual — although, as my friend Kevin Williamson has chronicled (e.g., here) they do happen. (I’ve noted the same on occasion.)

Similarly, criminal defendants seeking to have warrant evidence suppressed routinely claim that agents and prosecutors withheld material information that should have been disclosed to the judge — just as it has been claimed (quite correctly) that the Clinton campaign’s connection to the Steele dossier should have been disclosed to the FISA judges. Again, such failures to disclose, even when wrong, are generally based on erroneous judgment calls about whether disclosure was required under criminal-law discovery rules, which can be a complex question. Frauds on the court are highly unusual.

Don’t get me wrong: I am not arguing that law-enforcement officials never commit criminally actionable obstruction of justice; just that it is very rare. It is much more common that officials screw up than that they malevolently break the law. This is a distinction to which we must be sensitive: If police and prosecutors came to believe enforcement errors would lead to prosecutions or civil lawsuits against them, they would refrain from taking any but the most uncontroversial enforcement actions. In another context, Heather Mac Donald has written compellingly about this phenomenon as “the Ferguson effect.” To discourage policing is to erode the rule of law, imperiling societal peace and prosperity.

Good-Faith Grounds for the Trump-Russia Investigation
It is not inconceivable that crimes have been committed by investigators in the Trump-Russia investigation. Currently, however, there are not concrete grounds to conclude that they were. (I am addressing only what is raised in the Goodlatte-Gowdy letter. I am not addressing potentially illegal leaks of investigative or classified information, which the letter does not specifically address, and which the Justice Department says it is already probing.) Without concrete grounds for a criminal investigation, a special-counsel appointment could not be justified.

If there was a good-faith basis for the FBI and Justice Department to investigate possible Trump–Russia ties of a corrupt nature, it would be very difficult to prove that investigators broke the law in conducting their investigation — in contrast to proving that they engaged in abusive excesses that call for administrative discipline but not prosecution. One need not accept the politically inflated Trump–Russia “collusion” narrative in order to acknowledge that there was a basis for an FBI investigation. One need not endorse abusive investigative tactics in order to acknowledge that it would be very challenging to establish that they amounted to prosecutable crimes.

Candidate Trump made alarmingly ingratiating statements about Vladimir Putin, a murderous anti-American dictator (whose regime is suspected of still more assassination attempts on Western soil, carried out just this weekend in Britain). During the campaign, Trump praised Putin as a strong “leader,” and when asked about Putin’s political assassinations, Trump countered that “our country does plenty of killing also.” Once, he even expressed hope that the Kremlin’s agents would find former Secretary Clinton’s deleted State Department emails. While this was a very dumb thing to joke about, it was not a call for hacking, as many Trump detractors insist — it was a political jab calling attention to Mrs. Clinton’s security carelessness and destruction of thousands of government files.

With that as the mood music, Trump brought Manafort and Gates into his campaign at a very high level. They had notorious ties to Kremlin-backed Ukrainians. Those ties are not speculation; they are established fact. Moreover, Trump publicly identified Carter Page, an obscure Kremlin apologist, as one of his campaign’s handful of foreign-policy advisers. Simultaneously, the FBI was alerted that the Russians might be in possession of thousands of hacked emails damaging to Hillary Clinton, and might have made a point of communicating this claim to George Papadopoulos, another of the few identified Trump foreign-policy advisers.

Then the bureau was approached by Christopher Steele. Far from being unknown to the FBI, this former British spy was a proven asset, having provided information that helped the bureau crack the FIFA soccer case — the Obama Justice Department’s most significant international corruption and racketeering prosecution. Steele alleged that Trump was involved in a corrupt conspiracy with Russia, in which Manafort, the point man, was using Page as an intermediary. Because of his prior work with the bureau, Steele would not have been ignored by the FBI, regardless of the Clinton campaign’s sponsorship of his work — that would have been a reason to be skeptical, but not dismissive. The bureau also would have taken the claims themselves seriously — not necessarily believing them, but looking into them — given the preexisting reasons for concern: Trump’s pro-Putin rhetoric; the backgrounds of Manafort, Gates, and Page; and the report about possible Russian involvement in hacked Democratic emails.

Now, let’s be clear: None of this would excuse the FBI’s failure to verify Steele’s information before presenting it to the FISA court. None of this would justify the failure to inform the FISA court that Steele’s dossier was an opposition-research project commissioned by the Clinton campaign. None of this establishes Trump–Russia “collusion,” nor does it erase the fact that such collusion exists less as reality than as a political narrative to rationalize Hillary Clinton’s election loss. Moreover, to acknowledge the reasonableness of FBI and Justice Department concerns about the Trump-Russia information just outlined is only to raise more questions about the FBI and Justice Department’s tanking of the Clinton-emails case, which featured solid evidence of crimes, not mere suspicion.

There were good-faith reasons for concern about ties between the Trump campaign and the Russian regime.

My point is simply this: It would not be credible to claim that the Trump-Russia investigation was fabricated out of whole cloth. Even stipulating that the top FBI/DOJ hierarchy was biased against Trump, and thus too quick to credit sensational allegations of Trump wrongdoing, there were good-faith reasons for concern about ties between the Trump campaign and the Russian regime. These reasons do not prove that Russia was behind the hacking of Democratic emails; that Carter Page was a Russian agent; that Manafort and Gates were choreographing a Trump–Russia conspiracy; or that Trump’s Russia rhetoric was anything more than a political novice’s effort to do what American administrations have been doing for decades — seek better relations with Moscow.

Again, if there were good-faith grounds for the FBI and Justice Department to look into Trump–Russia ties, it becomes very difficult to imagine that investigative excesses transformed into criminal misconduct. And without crimes, there is no basis in the regulations to appoint a special counsel.

Assign a Solid U.S. Attorney, Not a Special Counsel
Clearly, there needs to be an investigation. Goodlatte and Gowdy are entirely right about that. Regardless of whether there is a solid basis for a criminal investigation, the Justice Department is always responsible for ensuring the integrity and lawfulness of its own operations — it must investigate credible allegations of misconduct by its component agencies, including the FBI. Goodlatte and Gowdy are also right to suggest (as I believe they have) that the contemplated investigation should scrutinize the handling of the Clinton-emails probe — how it comported, or failed to, with Justice Department practices and policies. The chairmen are right yet again that the jurisdictional limitations on Michael Horowitz, the Justice Department’s very able inspector general, make it impossible for him to conduct the investigation that is needed.

Neither, however, should that investigation be conducted by a special counsel.

The special counsel is a pernicious institution that operates outside the procedures and discipline of a normal U.S. attorney’s office — where the merits of every case must be weighed against those of every other in the competition for limited investigative and prosecutorial resources. Special-counsel appointments should be resisted whenever possible. Indeed, with Robert Mueller already — and inevitably — straying far afield from his original “collusion” inquiry, we should be discussing how that investigation can be limited and brought to a just conclusion; we should not be encouraging the launch of yet another special-counsel extravaganza. Never again should a special-counsel investigation be commenced in the absence of concrete evidence that a crime has been committed — a crime that serves to cabin the special counsel’s investigation lest it become a fishing expedition without end.

Here is what should be done. Attorney General Sessions should assign a U.S. attorney from outside Washington to conduct a probe of how the Clinton-emails and Trump-Russia investigations were handled by the Justice Department and FBI. A good model would be John Durham, the U.S. attorney for Connecticut just confirmed by the Senate. In 2008, when he was that office’s deputy U.S. attorney, he was assigned by Bush Attorney General Michael Mukasey to investigate the Bush administration’s program for interrogating high-level terrorist detainees, specifically, the possible destruction of evidence of the CIA’s mistreatment of prisoners. Durham, a highly regarded career prosecutor, was permitted to continue in this capacity when the Obama Justice Department expanded his inquiry. The investigation was closed without charges in a credible, professional manner in 2011.

Under my proposal, the designated U.S. attorney would handle this investigation along with the rest of the work of his or her office — this would not be a prosecutor whose only assignment is to pursue a single target or set of targets, and who thus faces great pressure to file charges, no matter how far afield from the original focus of the investigation, in order to justify the appointment. Unlike the inspector general, the U.S. attorney would have full jurisdiction to convene a grand jury; investigate any crimes attendant to the Clinton-emails and Trump-Russia probes; issue subpoenas and seek other court process (such as search warrants) to secure evidence; and prosecute any violations of law by persons inside or outside of government.

As in any investigation, the U.S. attorney would also have the discretion not to file charges, and to refer any government officials found to have engaged in misconduct for administrative discipline. The attorney general could further require that the U.S. attorney file a report about the investigation’s findings. This report could be shared with Congress; it could also be released to the public to the extent consistent with laws and guidelines that control the disclosure of investigative information regarding uncharged persons. (Obviously, information about charged persons, if any, would be disclosed in connection with their prosecutions.)

Some will argue that my proposal fails to ensure the “independence” enjoyed by special counsels brought in from outside the government, such as Robert Mueller. My first reaction is to ask: Was there ever a prosecutor more independent than Patrick Fitzgerald? Yet he was not brought in from the outside: When the Valerie Plame leak controversy broke, rather than ensure the appearance of independence by recruiting a former prosecutor from private practice, the Bush Justice Department decided to place an investigation of the Bush administration in the hands of the Bush-appointed U.S. attorney for the Northern District of Illinois — Fitzgerald, who was given the assignment by then–deputy attorney general James Comey. As Scooter Libby can attest — having been indicted for process crimes even though investigators had determined there was insufficient evidence to charge the actual leaker, Richard Armitage — the Bush administration was cut no slack by Fitzgerald, then a career prosecutor who is remembered for conducting a hyper-aggressive probe.

Most of the ways special counsels exhibit independence are not salutary.

That example aside, the principal failure of “we need an independent prosecutor” argument is that special counsels are not independent. Just like U.S. attorneys, they answer to the attorney general (or deputy AG if the AG is recused). Mueller is effectively independent only because Rosenstein has chosen to be passive; by the Constitution and regulation, Mueller reports to Rosenstein, who could assert more active supervision. Meanwhile, most of the ways special counsels exhibit independence are not salutary — particularly their propensity to expand the duration and scope of investigations that most prosecutors would drop if the original rationale for opening the investigation had proven fruitless.

Chairmen Goodlatte and Gowdy are right: The investigators need to be investigated. But we do not need a special counsel to do it. There is no reason that Attorney General Sessions cannot structure a probe that can be credibly conducted by the Justice Department’s standard investigative arrangement: the FBI, in conjunction with a U.S. Attorney’s office. While some recent errors by federal officials have deservedly drawn rebuke, these institutions typically do solid, professional work, uninhibited by partisanship. Let’s let them do the job that needs doing.

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