Now that President Obama has formally endorsed his former secretary of state for president, it’s no longer possible for him — or a Justice Department directly answerable to him — to rule impartially on whether she or her close associates should be indicted over her mishandling of classified emails. Ben Domenech lays out the case for taking the decision out of the hands of Obama’s attorney general, Loretta Lynch, not least because an investigation that clears Mrs. Clinton under these circumstances will not be trusted by the public, and will only feed the nihilistic cynicism that fuels Donald Trump.
The problem of an administration investigating itself is an intractable one, and we should not want a return to the unconstitutional, abusive runaway prosecutorial system that existed under the independent-counsel statute during the Carter, Reagan, Bush 41, and Clinton years. So a special prosecutor will still be subject to presidential dismissal. But as the Nixon years illustrated, there are painful political costs to firing a special prosecutor. The simplest solution may be to appoint FBI director Jim Comey himself, who is already leading the investigation (which reportedly has a full-time staff of at least a dozen agents) and has prior experience as a special prosecutor during the George W. Bush years. Of course, having her own special prosecutor would be politically damaging too, and that’s probably why Obama will refuse to appoint one — a line of reasoning that shows precisely why he should.