The AG shouldn’t be allowed to deceive the public into believing a prosecutor is independent if that prosecutor doesn’t qualify for the label.
The AG shouldn’t be allowed to deceive the public into believing a prosecutor is independent if that prosecutor doesn’t qualify for the label.
H ere’s an idea: To end the deception of the public, Congress should defund any special-counsel investigation as to which the attorney general’s special-counsel appointment does not comply with the special-counsel regulations.
This would not prevent an attorney general from assigning any prosecutor of the AG’s choosing to any Justice Department investigation. It would merely prevent the Justice Department from misleading the public about its supposed efforts to ensure the integrity of its investigations — as AG Merrick Garland has done with his appointment of sham special counsel David Weiss, a high-ranking Biden Justice Department official who remains the Delaware U.S. attorney, to continue conducting the investigation of Biden family corruption, which Weiss has been sabotaging for five years.
The multiple deceptions involved in Garland’s appointment of Weiss are not surprising given the track records of the players involved. To be fair to them, however, some amount of deception is baked into the cake: The popular notion of a special counsel as a prosecutor who is independent of the executive branch — who operates outside the control of the president and the attorney general — is a fiction.
As Justice Scalia explained in his famous Morrison v. Olson (1988) dissent, the federal government’s prosecutorial power is executive in nature. It may not be directly or indirectly exercised by Congress or the courts because it is exclusively a presidential power. In our constitutional structure, all executive power is reposed in one official, the president. Every other executive officer — including the attorney general, district U.S. attorneys, and federal prosecutors assigned to individual cases — is merely a delegate who is permitted to exercise some component of the president’s power at the president’s pleasure. This is why, although the Constitution mandates that high-level executive appointees may not take office until they are confirmed by the Senate, they may be fired by the president at will — for any reason or no reason.
The president’s prosecutorial power is delegated principally to the attorney general. Modern federal law-enforcement has gradually grown into a massive undertaking: The Justice Department was established in 1870, and the country now features 94 federal districts (many big states have more than one), for each of which there is a presidentially appointed, Senate-confirmed United States attorney. Those district U.S. attorneys enjoy a measure of autonomy in managing the prosecutors they hire to work cases. For example, because they are presidential appointees, they cannot be fired by the AG or the deputy AG — only by the president. In addition, while U.S. attorneys are supervised by the AG and DAG, they generally do not need permission from Main Justice in Washington in order to conduct an investigation or file charges. (An exception is tax cases, which must be approved by Tax Division at Main Justice — so designating the Hunter Biden probe as a tax case was another way Biden appointees kept tight control of the probe, even as Garland disingenuously assured Congress and the public that Weiss had ultimate decision-making authority.)
The constitutional framework in which prosecutorial power is executive in nature has an unavoidable weakness: The Justice Department, which is the executive branch’s law-enforcement component, is beset by a profound conflict of interest anytime there are serious grounds to believe the president, those close to the president, or administration officials have engaged in criminal misconduct. In such a situation, the DOJ must investigate its own boss — or his top subordinates or family members — even though its power to investigate comes from that same boss, who has the authority both to order federal prosecutors not to conduct the investigation and to fire any defiant DOJ officials, including the attorney general.
This weakness can be mitigated, but there is no getting around it. Any cure would be worse than the disease. Congress can and should conduct aggressive oversight to hold the executive branch accountable (as at least three House committees are currently doing in connection with the Biden influence-peddling scandal); but the framers recognized that to join the law-making and law-enforcement powers in a single set of hands would lead to tyranny. Ergo, Congress may neither prosecute nor appoint its own prosecutors to do so outside the control of the executive branch. Similarly, the judiciary, the non-political branch, may not manage the very prosecutorial actions it will be called on to judge; in our federal system, the courts are barred from ordering investigations and prosecutions, and even from participating in plea negotiations.
Nor would changing our system to provide prosecutorial independence be desirable. A prosecutorial agency that was independent of executive control — the awesome powers of investigation and prosecution shorn of any political accountability — would be dictatorial. On the other hand, making a prosecutorial agency’s leadership democratically elected might solve the accountability problem, but it would infuse politics into the fabric of law-enforcement. This would lead to the dysfunctions we see in state systems across the country that feature elected district attorneys: progressive prosecutors who decline to enforce the laws democratically enacted by legislatures; partisan prosecutors who use law-enforcement processes as a weapon against their political enemies.
The system we have is superior to these alternatives, particularly when we factor in the norms that have grown up around it. The DOJ answers to the president, who is politically accountable to the public for its performance, but for whom criminal law-enforcement is just a small — albeit important — part of an array of duties. While it is expected that the president will guide the Justice Department’s policy priorities (e.g., whether to focus finite law-enforcement resources on, say, violent street crime, corporate fraud, counterterrorism, or espionage), we expect that the White House will resist involvement in day-to-day law-enforcement, allowing the Justice Department to enforce the laws and exercise prosecutorial discretion without partisan interference. In fact, internal executive-branch protocols restrict an administration’s political officials from communicating with the Justice Department. And because the AG and other top DOJ officials must earn confirmation before they may serve, they must assure the Senate and the public that their ultimate fidelity is to the Constitution, not the president; that they will exercise the authority the president entrusts in them only in a manner consistent with federal law; and that they will be non-partisan prosecutors, consistent with our bedrock commitment to equal protection under the law.
It is not a perfect system — no system devised by humans ever is. But it is an excellent system. When it occasionally breaks down, moreover, it is due not to structural weakness but to the failure of people trusted with its power to adhere to its norms. What’s true of government is what’s true in general: If you are fortunate enough to have competent, honorable people in place, things will work well despite inevitable problems; if you instead have incompetent or dishonorable people, the most perfect organizational structure imaginable will not save you from dysfunction and worse.
This brings us to special counsels.
We’ve had plenty of trial-and-error with the misnomer “independent prosecutor” in the past half-century. The ad hoc Watergate special prosecutor gave way to the statutory independent counsel construct that Justice Scalia deconstructed in Morrison. I wish I could tell you that it was the nonpareil jurist’s wisdom that ended that misbegotten experiment, but it wasn’t; it was the Clinton/Lewinsky scandal — which is to say, it was the realization by Democrats that their administrations, too, could be ruined by prosecutors who were beyond the president’s control. Thus was the special-counsel statute allowed to lapse at the turn of the century.
Now we have the special counsel who is a creature of regulations written to be ignored. Don’t take my word for it. Just read the tenth and final special-counsel reg, §600.10, wryly entitled “No Creation of Rights”:
The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.
Translation: If we here at the Justice Department ignore these high-minded rules instructing how we must handle conflicts of interest in politically fraught investigations, too damn bad — there’s nothing anyone can do about it.
Obnoxious, sure, but it’s what we should expect. After all, the purpose of these rules is to create a misimpression that it is possible, constitutionally and practically speaking, to enable a federal prosecutor to operate outside the supervision and control of the Justice Department and the executive branch.
Of course, it’s not. So the first nine rules outline a vision of a prosecutor brought in from outside the government who conducts a politically charged investigation with minimal interference from Main Justice, and then — recognizing that there could be many undesirable ramifications from such an arrangement — the tenth rule elucidates that the first nine rules are not really rules at all. Part of what makes a rule a rule, after all, is that it is enforceable — bad consequences follow if it is broken. That’s not the case with the special-counsel rules. They are merely suggestions.
And that would be fine if the Justice Department leveled with us. But it doesn’t. When attorneys general appoint a special counsel, they invariably tell us that the appointment ensures that the special counsel will be independent, will investigate without any interference from the conflicted DOJ — even as, in Merrick Garland’s case, the attorney general (a) is well aware that the regs provide no such assurance and (b) is flagrantly flouting the regs as he cites them.
Under those regs, David Weiss is not eligible to be a special counsel. Period. The qualifications provision (§600.3) is explicit and unambiguous on this point:
The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.
Weiss is the Delaware U.S. attorney. While Garland likes to con the country about Weiss’s independence from the Biden Justice Department by crowing that he is “a Trump appointee,” Weiss was actually made the acting Delaware U.S. attorney at the start of President Obama’s first term, and was a top official in that district U.S. attorney’s office throughout the Obama–Biden administration — years during which he worked closely with then-vice president Biden’s now-deceased son Beau (who was Delaware’s attorney general). President Trump kept Weiss because, with Senate Democrats having declared jihad against Trump nominations, he needed some easy confirmations. Not much caring who was the U.S. attorney in sleepy Delaware, he nominated the Obama “acting” holdover, who had the enthusiastic support of the state’s two Democratic senators — Biden allies Tom Carper and Chris Coons (either of who could have blocked a nominee to whom he objected). In an era when many Trump appointees had to cobble together enough support to withstand a few dozen Democratic nays, Weiss sailed through on a voice vote. He’s their kinda guy.
Regarding Garland’s faux special-counsel appointment two weeks ago, then, it’s insufficient to observe that Weiss was not an attorney “from outside the United States Government”; he had been a high-ranking Justice Department official in Joe Biden’s home district for some 14 years, including throughout Biden’s tenures as vice-president and president.
Not just that. Even as the AG bestowed the risibly exalted title of “special counsel” on Weiss (and how many times in the last two weeks have you heard journos say that Garland has “elevated” Weiss to the position, even though U.S. attorneys — presidential appointees — outrank special counsels), Garland took pains to say that Weiss would be continuing in his post as Delaware U.S. attorney. So he’ll not only remain a high-ranking Biden Justice Department official as he pretends to investigate the Bidens. It will also be impossible for him to comply with the reg’s condition that he make the Biden investigation his highest priority — to the exclusion of all else if necessary — because the president has already made enforcing the federal law in Delaware his top priority.
More to the point, the “attorney from outside the U.S. government” credential is not a small detail. What drives the need for a special counsel is the Justice Department’s conflict of interest. What makes the counsel special is that he, at least at the start, is not plagued by the Justice Department’s conflict, having been brought in from outside. To be sure, a special counsel becomes plagued by the DOJ’s conflict the moment his appointment begins, because there is no such thing as a federal prosecutor independent of the Justice Department — all federal prosecutors, special counsels included, report to the attorney general, must follow Justice Department guidelines, exercise the president’s power, and may be fired by the president at will. (A special counsel may be fired by the attorney general for cause.)
It makes an utter mockery of the special-counsel construct to confer the title on a high-ranking official of the conflicted DOJ who has been assured that he will remain a high-ranking official of the conflicted DOJ even as, in his spare time, he feigns the doing of special-counsel stuff. In Weiss’s case, the mockery is unparalleled: He has spent five years destroying the Biden investigation by not filing an indictment and thus letting the statute of limitations eviscerate potential charges; but he has obviously done that because it provides him job security. As the only Trump-appointed U.S. attorney (at least nominally) not fired when Biden’s term started, he was supposedly kept on to “run the investigation,” but the truth of that arrangement is that as long as the investigation never turns into serious charges, Weiss can keep his job.
If I’ve heard it once, I’ve heard it a million times in the last two weeks: Why didn’t you speak up when Attorney General Bill Barr appointed John Durham, then the U.S. attorney for Connecticut, as special counsel on Russiagate? Answer: I did — you can look it up. Look, I’m a Barr fan and I don’t like special counsels — they should never be appointed unless it’s absolutely necessary, like when the president is implicated in potential crimes. But I’m a stickler on this sort of stuff, and I had made a big deal over what I still believe was the impropriety of then-deputy AG Rod Rosenstein’s special-counsel appointment of Bob Mueller to investigate then-president Trump. Mueller was brought in from outside the government, but for a matter that did not fulfill another important special-counsel precondition: grounds to believe a criminal investigation is warranted.
With that said, though, Barr’s October 19, 2020, appointment of Durham can be rationalized in a way that Garland’s appointment of Weiss cannot. Assuming Biden won, as the polls suggested he would, Durham was about to be fired as Connecticut U.S. attorney; he would have been purged just like the other Trump-appointed holdovers (other than Weiss, of course). So while Durham was not brought in from outside the government, he would have been outside the government were it not for the investigation — he was not going to be a high-ranking Biden DOJ official, and his government employment was going to end the moment he closed his investigation. Further, Barr had already made clear that Biden was not a subject of Durham’s investigation.
But the bottom line is clear: There was nothing improper about Barr’s appointment of Durham to run the Russiagate probe, just like there was nothing improper about Rosenstein’s appointment of Mueller to run the Trump/Russia probe (a counterintelligence case, not a criminal case), and just like there is nothing improper about Garland’s assignment of Weiss to what passes for the Biden investigation. Attorneys general have broad authority to assign any federal prosecutor to handle any investigation or prosecution (at least as long as the matter in question does not pose a conflict for the assigned prosecutor). And if an AG decides to hire an attorney from outside the government to handle a criminal or counterintelligence case, he’s got authority to do that, too.
The AG just should not be permitted to confer the title “special counsel” on such an attorney unless the AG certifies to Congress that the appointment complies with the special-counsel regulations (excluding the aforementioned §600.10 — the rule that guts the rest of the rules). If the AG can’t or won’t make that certification, Congress should defund such a “special counsel’s” investigation.
In terms of structure, the current special-counsel regulations are probably the best we can do. They accommodate the remorseless reality that, despite our desire for independence, a special counsel does work for the conflicted Justice Department and for the president who may be under investigation. Yet, the regs also seek to promote a degree of detachment that is not necessarily illusory: They require that a competent lawyer (presumably, a former prosecutor steeped in the DOJ’s policies and practices) be brought in from the outside. That’s probably the best we can hope for, though it is hardly a perfect solution. After all, the AG could bring in from outside the government a partisan hack who happens to have been a federal prosecutor in the past, and who could be expected to protect a president of his party at the expense of an investigation.
But that brings us back to the bottom line — it’s ultimately about people, not processes. If an AG appoints a scrupulous, able lawyer who has the respect of the profession, the bench, and both sides of the political aisle — and there are many such attorneys — an investigation can have credibility, even amidst a Justice Department conflict of interest. The personal gravitas of such a special counsel can make it politically impossible for even a president who is worried about an investigation to fire the special counsel or obstruct the investigation. On the other hand, if the AG does not appoint that kind of a lawyer, then it probably doesn’t matter what the rules say or whether they are complied with; the investigation is going nowhere anyway.
But in any event, Congress should not allow the “special counsel” designation to be conferred fraudulently. If the AG is going assign a politically fraught case to an official of the conflicted Justice Department — especially an official such as David Weiss, who has already had the case for five years and has undermined it exactly the way you’d figure a pervasively conflicted prosecutor from a pervasively conflicted Justice Department would undermine it — then the AG shouldn’t be allowed to deceive the public by labeling the arrangement a “special counsel” probe.