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Amid the rumors and speculation regarding a new FBI director, the Democrats continue to cry out for a special prosecutor. I kept hearing that this step would be a bad idea, but I decided that finding out the reasons could be helpful. Let me give you some background and the reasons for taking an alternative course for continuing the investigation regarding the Trump campaign and Russia.
Many people are trying to compare Watergate with this current situation, which is a deeply flawed analogy. They are likely referring to Nixon’s firing of Archibald Cox who had been appointed as special prosecutor. Katy Harriger, a professor at Wake Forest University and author of The Special Prosecutor in American Politics, points out that a special prosecutor needs to be able to work independent of the President and Attorney General:
It was thus that Congress passed the Ethics in Government Act. The 1978 law formalized the process that had been going on for a century at that point, creating special prosecutors (renamed independent counsels in 1983, partly to avoid any implication of assumed guilt) and giving a panel of judges the right to pick them. After the law’s expiration in 1999, the Attorney General kept the right to appoint special counsels, with internal regulations determining the circumstances.
Later, we saw this power practiced in the Scooter Libby case. Peter Zeidenberg in the Washington Post wrote about the two years spent by Patrick Fitzgerald, appointed as special prosecutor by then-Deputy DA James Comey, to investigate Scooter Libby. After that lengthy investigation, Libby was convicted of perjury; we now know that conviction was based on a lie. Zeidenberg also says:
This is the model many Democrats are now clamoring for: the appointment of an aggressive, independent and apolitical prosecutor to investigate possible ties between Trump’s campaign and Russia, to follow the trail wherever it leads and to prosecute anyone determined to have broken the law.
But many overlook a huge potential downside to this approach. Prosecutors are not journalists, and their job is not to inform the public of the results of their investigations. Rather, their mission is to gather all of the relevant facts and determine whether a crime was committed and, if so, whether it can be proved in court beyond a reasonable doubt. Their work, when done properly, is done in secret. Indeed, violations of grand jury secrecy can result in serious sanctions from the court.
He also explains other potential problems. If, in this case, a subpoena is issued to Russia and the parties don’t comply, it would be improper to seek an indictment. It’s also possible that there were contacts between the Trump campaign and the Russians that were not illegal, but could have been improper. And since no information can be given to the public during an investigation about any of these outcomes, no one would know why no action was taken.
For these reasons, Zeidenberg recommends the following:
Rather than a special prosecutor, what’s needed is an independent, 9/11-style commission to investigate potential foreign ties to the Trump campaign. Only by a thorough and public accounting can the public have confidence that our democracy has not been hacked.
The 9/11 Commission report was issued in less than two years.
And who would be in charge of organizing a special commission? Rod Rosenstein. Rosenstein is the new deputy attorney general and was confirmed by a 94-6 vote. He has worked with Republicans and Democrats. He’s already in charge of the investigation into Russian influence and addressed the question of an independent prosecutor:
For some people, there is a political significance to what the chief investigator is called, but for me, the issue is how the investigation is being conducted. That should have nothing to do with what you call the chief investigator . . . There are plenty of people in the Department of Justice who are capable of handling such investigations.
To summarize, I believe there is a convincing argument to be made by the Republicans to the public that a special prosecutor is a bad idea: it will be a lengthy process; the public will not be informed on the details of the investigation, such as the lack of a crime or insufficient evidence; and it’s nearly impossible to ensure that a special prosecutor will not be partisan.
Clearly the Democrats will not be satisfied with this recommendation. After all, it doesn’t satisfy their desire to keep the Russia investigation front and center to rankle the Republicans. But Zeidenberg’s recommendation of the formation of a special commission like the National Commission on Terrorist Attacks Upon the United States (9/11 Commission) is a plausible and practical solution. I trust Rod Rosenstein to choose the Commissioners wisely.Published in