Backed into a corner by his own short-term political calculations, Biden’s AG was forced to make the right call at the behest of his handpicked prosecutor.
Backed into a corner by his own short-term political calculations, Biden’s AG was forced to make the right call at the behest of his handpicked prosecutor.
B efore history forgets him, I come to praise John Lausch, not to bury him.
John R. Lausch Jr. is the United States attorney for the Northern District of Illinois, in Chicago. When President Biden’s classified-information scandal fell into the lap of his attorney general, Merrick Garland, just after the first batch of top-secret documents was discovered on November 2, Garland made a move out of the playbook of his predecessor, Bill Barr: Rather than holding a sensitive matter close at Main Justice, he farmed it out to Lausch, an experienced, well-regarded prosecutor from outside the Beltway hothouse.
After a short but intense preliminary investigation, Lausch made the right call, recommending that Garland appoint a special counsel. The evidence that the president violated the criminal law is so strong that, as I’ve already explained, he’s really not contesting the basic facts; instead, he’ll contend that on balance he should be the beneficiary of prosecutorial discretion. Still, make no mistake: The fact that this was not a tough call on the evidence doesn’t mean it was an easy call for Lausch to make. It is not a small thing that he had the scruples to make it.
To be sure, Garland has dithered far too long. Under the regs, and in light of his dubious application of the regs to Donald Trump, he should have appointed a special counsel two years ago to probe Joe Biden’s influence-peddling (the investigation the Justice Department, Democrats, and their media allies deceptively frame as the Hunter Biden “tax matter”). But let’s still give the AG his due: He had the good sense not to reject Lausch’s recommendation after touting him as extraordinarily qualified to make it. Not every AG has been as prudent.
Like all astute observers of the turbulent intersection of law enforcement and politics since Watergate, Garland and Barr have a bias against so-called independent prosecutors — who, under current regulations, are known as special counsels, having previously been called independent counsels under the flawed statutory scheme that Democrats championed after prosecutors ended the Nixon presidency and then happily cashiered once they’d watched it nearly end the Clinton presidency.
There are excellent reasons for this bias, and they have never been better explained than by the late, great Justice Antonin Scalia in his now-legendary dissent in Morrison v. Olson (1988). In the American system, prosecution is an executive power. The Constitution vests all executive power in the president. Ergo, there cannot legitimately be a federal prosecutor who is independent of the authority of the executive branch and its law-enforcement component, the Justice Department. A prosecutor, no matter how “special,” lacks power of his own; he is a delegate who exercises the president’s power only at the president’s pleasure — meaning he can be fired at will.
The supposed independence of a special counsel is thus an illusion projected for political purposes. Legally, it is a fiction: The special counsel reports to the attorney general, who reports to the president, and even if the AG does not monitor the special counsel’s day-to-day investigative activities, the special counsel is subject to Justice Department policies — including the policy that forbids the indictment of a sitting president. (The Constitution explicitly permits courtroom prosecution of a president, even if the president is impeached for the same underlying conduct; but long-standing DOJ Office of Legal Counsel guidance holds that such prosecutions may not occur until after the president has left office.)
Nevertheless, largely because of the pretense of independence, with attorneys general feigning detachment and presidents feigning a commitment to non-interference, special-counsel investigations tend to be driven by politics rather than law. After all, what difference does it make that a president has the legal authority to fire the prosecutor investigating him if the exercise of that authority could be politically ruinous? Because special counsels are empowered by political circumstances if not by law, they have paralyzed many an administration, just as Justice Scalia foresaw that they would.
This owes to the insidiousness of the institution of the special counsel. In a district U.S. attorney’s office, every case has to compete for resources against every other case. Because there is more crime than there are resources to address crime, normal prosecutors cannot keep an unfruitful investigation open until the end of time; they have to close it and move on to the next case. By contrast, a special counsel brought in from outside the government has only one case, involving one target (or a single set of related targets). The words of Stalin’s infamous henchman, Lavrentiy Beria — “Show me the man and I’ll show you the crime” — are frequently invoked in describing this nefarious arrangement.
Special-counsel probes are high-profile, involving top officials and announced with fanfare (as was this week’s appointment of Robert Hur to take over the Biden investigation). The special counsel quickly becomes a celebrity of sorts and comes under pressure to justify the attention and the lavish resources dedicated to his probe by getting results. In a perfect world, we would think that meant filing no charges if no worthy cases developed. But in the world as it actually is, prosecutors worry that they will be seen as failures if they produce no indictments.
As a result, special-counsel investigations often go on for years, and veer into new matters far afield from their original stated purpose (e.g., the Monica Lewinsky scandal arose from the independent-counsel probe of the Whitewater real-estate-fraud controversy, years before Bill Clinton became president). They are more likely to generate new “process” crimes (false statements, obstruction) than to lead to a prosecution of whatever suspected crime triggered them. And they are often politically abusive (e.g., Lawrence Walsh’s lawless Iran–Contra indictment of George H. W. Bush’s defense secretary, Caspar Weinberger, just days before the 1992 presidential election; and Robert Mueller’s persistence in the Russiagate probe long after it was obvious that Trump had not colluded with the Kremlin).
Given that a special counsel’s independence is an illusion and the politics of special-counsel probes are corrupting, you might ask: Why ever have a special counsel? Well, because we are guided by the principle that presidents are not above the law, and we have come to accept the unhealthy assumption that prosecutors, not Congress, should be the principal check on the president.
Even critics who deride the special-counsel construct must concede that it has endured because it is simply not credible for the Justice Department to investigate the White House, the administration, and especially the president, to which it answers. For that reason, attorneys general have to weigh the immense downsides of naming a special counsel against regulations the AG is duty-bound to enforce — regulations that dictate naming one if there are solid grounds for a criminal investigation and a conflict of interest. As for the latter, there is no more profound conflict than that presented by a case in which the president himself is credibly suspected of criminal wrongdoing.
The politics are sufficiently fraught that attorneys general wade in with a “let this chalice pass from me” vignette: Bring in an able career prosecutor respected across political lines to perform triage — a preliminary inquiry to assess whether it’s really necessary to name a special counsel. The AG can then hope that the prosecutor performing this preliminary review will find something that indicates there’s insufficient evidence to warrant a full-blown investigation; and if the prosecutor reaches the alternative conclusion that there is a “there there,” the AG can plausibly maintain that he had no choice but to appoint a special counsel, effectively shifting blame to the prosecutor who performed the preliminary review.
The Biden situation is intriguing because Garland backed himself into a corner by playing politics. On November 18, 2022 — which we now know is two weeks after he learned Biden had mishandled classified documents — the AG appointed a special counsel . . . to handle the ongoing investigations of Trump. This was a foolish departure from Garland’s default bias against special counsels, adopted because he wanted to distance himself and Biden from what then appeared to be the certain indictment of the former president (who is also a current presidential candidate) over the Mar-a-Lago documents. In reality, there was no substantial conflict of interest that prevented the Biden Justice Department from investigating and prosecuting Trump in the normal course.
Because he needlessly appointed a special counsel for Trump, Garland would have great difficulty continuing to pretend that there was nothing unseemly about his failure to appoint one for the Biden investigation (a.k.a., the “Hunter” probe). Finally, when President Biden’s own classified-document scandal emerged, there was no avoiding the appointment.
Or was there?
In 1998, Charles LaBella, a stellar prosecutor and former colleague of mine in the Southern District of New York U.S. attorney’s office, was assigned a thankless task by Attorney General Janet Reno: a preliminary review to assess whether the campaign-finance scandal then enveloping the Clinton administration warranted appointment of an independent counsel. LaBella did his characteristically thorough job and recommended that Reno appoint an independent counsel.
Easy call? Well, there clearly were grounds for a criminal investigation, and the Clinton Justice Department was patently conflicted. But that doesn’t mean this was a no-brainer for LaBella. There was enormous pressure on him not to apply the law faithfully. Clinton was already beset by the Whitewater independent-counsel investigation that evolved into L’affaire Lewinsky. In angering the White House by making the correct but politically laden call, LaBella would be dashing his chance of being appointed U.S attorney in San Diego — a prestigious job he wanted and for which he’d have been perfect.
Still, LaBella did his duty . . . and then Reno shirked hers. After taking credit for showing good judgment in assigning LaBella to make the preliminary assessment, she rejected his recommendation. In the aftermath, the Clinton administration toughed it out, as it was wont to do. There was no campaign-finance indictment — with Vice President Al Gore laughably claiming there was “no controlling legal authority” to support his prosecution, notwithstanding the clear-as-a-bell statute that made his use of his government office to solicit political donations illegal.
The incident tarnished Reno’s reputation. Garland, who was a top official in Reno’s Justice Department all those years ago, was not going to let that happen to him here. However belatedly, he did the right thing, appointing a special counsel for Biden. And he did it because John Lausch shut out the politics and did his duty.
We could use more of that in the United States government. A lot more.