As we have seen time and again, the special counsel is a pernicious institution.
As we have seen time and again, the special counsel is a pernicious institution.
I guess our destiny is to have to address this nonsense every few months, no matter which party is in charge of the government. Okay, all together now: There is no good reason to appoint a special counsel.
This time, it’s President Trump and his most strident supporters pushing for it — yes, you heard that right: A president is taking the position that the Justice Department he runs is not up to the job and needs to bring in someone from outside. Sigh . . .
The president wants Attorney General Bill Barr to name a special counsel to investigate possibly actionable Biden family corruption, arising out of the habit Joe Biden’s son, Hunter, made of cashing in on the former vice president’s political influence — a habit Hunter shared with several other associates, including “Middle Class Joe’s” younger brother, Jim. Obviously, such an investigation would pursue the reasonable suspicion that Joe Biden, the president’s rival in the imminent election, was well aware of what was going on, encouraged it, and profited from it.
In reality, whether the apparent corruption is actionable (in the criminal-prosecution sense) is a second-order issue, for reasons I will come to.
True, it is rational to suspect that there is criminality here. After all, two of Hunter Biden’s partners, Devon Archer and Bevan Cooney, have already been convicted of fraud by the Justice Department — in connection with transactions that only scratch the surface of patterns of conduct that stretch back decades. (See, e.g., this Politico exposé of Biden family self-dealing, going back to Joe Biden’s election to the Senate nearly a half-century ago.)
But that does not and should not trigger the appointment of a special counsel. As we have seen time and again, the special counsel is a pernicious institution — aping all the defects of its predecessors, the special prosecutor and the independent counsel (the latter a product of a statute to which both parties, having been scorched by it, were happy to say good riddance when it thankfully lapsed in the late Nineties).
In fact, the perniciousness of a special counsel appointment is illustrated by the warped rationale under which President Trump and his retinue are now calling for it.
Understandably, the president is still fuming over the fact that he was baselessly investigated on suspicion of Russian “collusion,” leading to a very damaging special-counsel investigation, which was conducted in a shamefully politicized, brass-knuckles fashion. Trump is fond of saying that we need to get to the bottom of the abusive, Obama administration-launched Trump–Russia investigation because it’s the kind of thing that “should never happen again.” Well, yes but . . . the special counsel appointment is a big part of what should never happen again.
Yet, Trump partisans are pushing for it to happen again for the worst of reasons: There are less than two weeks to go before the election and that means, by their lights, AG Barr’s Justice Department is not moving rapidly enough to prosecute the Bidens. Therefore, the president says, the AG has to “act fast” and “appoint someone” to conduct a probe.
This is absurd. Even by Trump standards, it is a breathtakingly unabashed effort to politicize law enforcement. (Though the president may not realize it, he has been well-served by his advisers’ practice of ignoring these tantrums.) Even if Barr were to lose his mind, ignore the law, and appoint a special counsel (happily, I don’t believe any of those things is close to happening), no special counsel would file charges within days of an election — particularly under circumstances where the action would be designed, patently, to affect the outcome of the election.
It would never happen.
Just for laughs, let’s suspend disbelief and imagine that a competent prosecutor could wrap up in the next ten days (or maybe you’d prefer ten minutes!) a complex financial fraud and corruption probe — the kind that takes months or more to investigate adequately, particularly when many of the pertinent records and witnesses are overseas, and opaque authoritarian regimes are implicated.
The way our constitutional system works (as Justice Scalia trenchantly explained in his famous Morrison v. Olson dissent), the special counsel has to remain a subordinate part of the executive branch chain-of-command. A special counsel answers to the attorney general and has to follow Justice Department policy. The attorney general, following Justice Department policy, would not himself file charges for the blatant purpose of affecting the outcome of an election. Obviously, a subordinate special counsel would not be permitted to do so, either.
More to the point, there is no basis in law or fact to support the appointment of a special counsel.
I assume not only that there are grounds to conduct a criminal investigation, but that at least one such investigation has been underway for a while. We know that at least one grand jury subpoena has been issued by the U.S. attorney’s office in Delaware. The Biden camp flyer that this indicated a possible investigation into whether “Russian disinformation” was behind the Hunter Biden laptop makes little sense — if there were a basis for such an investigation, it would more likely be counterintelligence, not grand-jury, and not run out of Delaware. But if there’s a criminal corruption investigation of some kind, a grand-jury subpoena makes perfect sense. The FBI and DOJ use the grand jury when they believe they have a factual predicate for a criminal investigation, so I assume there is one.
That said, as we covered about a million times before and during the Mueller investigation, a special counsel is only appointed when the Justice Department has a conflict of interest so profound that it simply cannot ethically conduct the investigation in the normal course, and thus has to delegate a lawyer from outside the DOJ to do it.
Let’s put aside that the DOJ is apparently investigating the Bidens. There should almost never be a situation when the DOJ is too conflicted to investigate. The DOJ is a big department with thousands of government lawyers. If an individual prosecutor is conflicted in a case (say, because a relative or a former client is under investigation), that lawyer can always recuse, enabling a non-conflicted DOJ prosecutor to run the investigation.
The only situation in which it is arguably necessary to appoint a special counsel is when the subjects of an investigation include the president and/or other high-ranking officials.
I’m not even sold on it in that situation. But there’s no reason to get bogged down on that. Let’s stipulate that there are good reasons to suspect that the Justice Department could not credibly investigate the administration of which it is a part. There is still no reason to believe the Trump Justice Department has a conflict of interest in investigating political figures who are of lower rank, who are not in the government at all, or who are in the opposition to the party in power. Those kinds of investigations go on all the time. In fact, as noted above, two of Hunter Biden’s associates have already been prosecuted by the Justice Department — in cases that were brought during the Obama administration and have been pursued during the Trump administration.
With no conflict of interest, there is no basis to appoint a special counsel. And since any special counsel would report to AG Barr, just like any DOJ prosecutor would report to AG Barr, there is no point in even discussing the appointment of a special counsel.
And we haven’t even gotten to all the reasons no one, from either party or of any ideological stripe, should ever want a special counsel unless it is absolutely necessary to have one.
In prosecutors’ offices all over the country, every investigation has to compete for finite resources with ever other investigation. Consequently, truly deserving cases are pursued and unworthy cases are dropped. By contrast, a special counsel is given nigh unlimited resources to pursue one high-profile target or set of targets. There is no need to balance the investigative effort against cases that are more worthy of attention. And while in a normal prosecutor’s office, the ethos is that justice is done if an unworthy investigation is dropped, the special counsel’s incentive is to keep at it for as long as it takes to indict someone for something — even if it is just a process crime (i.e., a crime caused by the investigation), or just a bunch of foreigners who will never actually see the inside of an American courtroom. The probes proceed long after the original rationale for them is a dim memory because, otherwise, the special counsel fears being perceived as a failure.
It is a terrible system. Instead of investigating a known crime to find the person who committed it, a special counsel probe is often a matter of assigning a prosecutor to a known person to poke around until the prosecutor finally finds a crime.
Finally, it is political malpractice for the Trump campaign to shift the focus from his opponent to his own Justice Department. The issue is that former vice president Biden put his political influence on sale; the issue is not whether the Justice Department can establish that crimes have been committed. It is not whether indictable conduct has occurred, but whether corrupt conduct has occurred. That is a meritorious political argument, which is what must be paramount in an election campaign for high office. The legal questions are beside the point.
President Obama made Vice President Biden the point-man for administration foreign policy in Ukraine, China, and Russia. There is a lot that divides those three countries. The one thing that unites them is that, while Joe Biden was directly influencing American policy towards them, they all found it expedient to pay Hunter Biden millions of dollars.
That is a goldmine of a political argument that has fallen into President Trump’s lap in the last days of the campaign — involving the kind of arrogant, insular Swamp antics that infuriate voters and got Trump elected in the first place. If the president can’t make his good fortune sing, that’s not the Justice Department’s fault.