Special Prosecutor Is a Bad Idea

 

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.

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  1. Trinity Waters Inactive
    Trinity Waters
    @TrinityWaters

    Give them nothing!  A national commission to waste an enormous amount of time, money and resources on nothing?  There is no there there.  It’s blatantly obvious by now.  Give a mouse a cookie?  NO!  Let the Democrat party twist in the wind.  No guilt, no favors, no reaching across the aisle, no equivocation.  Nothing.

    A good summary of the history and possibilities though, Susan.

    • #1
  2. I Walton Member
    I Walton
    @IWalton

    The whole thing is bogus and the very nature of a special prosecutor is appropriate for a police state, especially if a Republican is the target.   It’s just an invitation to pile on and make as much scandal and undermine the new Administration as much as possible.  It’s shameful, but not surprising.

    • #2
  3. KC Mulville Inactive
    KC Mulville
    @KCMulville

    If you have an investigator who get nominated and appointed to investigate the probability of a specific allegation, all the pressure is to sustain the allegation. Especially in big, prominent case. You want TV hearings? Money for lawyers and lawyers and lawyers? Well, then you better deliver on all that power and attention. No one wants to acquire a ton of money, power, and attention only to turn around and say, “meh, nuttin’ here.”

    As I said, the longer the Democrats can keep the investigation going … even though, after all the time they’ve had already, there isn’t a single official allegation of wrong-doing … the more the Democrats can attack without needing proof.

    The Democrats have learned the optics of the Benghazi investigation without caring about the substance.

    (And yes, I still hate the word “optics.”)

    • #3
  4. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    KC Mulville (View Comment):
    As I said, the longer the Democrats can keep the investigation going … even though, after all the time they’ve had already, there isn’t a single official allegation of wrong-doing … the more the Democrats can attack without needing proof.

    Precisely. The Republicans can’t choose to do nothing, KC and @trinitywaters. If they sit by, they will look passive and inept–not a quality that Trump will embrace. So even though it’s a waste, the Republicans need to be assertive, take control, manage the investigation through the Deputy AG, get a report, and be done with it. Otherwise the Democrats will have it on the front page, with the help of the media, for years.

    Keep in mind that the 9/11 Commission had a deadline. So it wouldn’t be allowed to go on for ever.

    • #4
  5. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    I Walton (View Comment):
    The whole thing is bogus and the very nature of a special prosecutor is appropriate for a police state, especially if a Republican is the target. It’s just an invitation to pile on and make as much scandal and undermine the new Administration as much as possible. It’s shameful, but not surprising.

    Again, that’s why I think an appointed commission, out of the limelight, would make the most sense.

    • #5
  6. Steve C. Member
    Steve C.
    @user_531302

    No. That’s a surrender in the guise of a solution.

    The FBI is perfectly capable of finishing the investigation. They have the tools, they have the talent and they’ve been working on this for almost a year. All a commission would do is add time, cost and confusion.

     

    • #6
  7. I Walton Member
    I Walton
    @IWalton

    Susan Quinn (View Comment):

    I Walton (View Comment):
    The whole thing is bogus and the very nature of a special prosecutor is appropriate for a police state, especially if a Republican is the target. It’s just an invitation to pile on and make as much scandal and undermine the new Administration as much as possible. It’s shameful, but not surprising.

    Again, that’s why I think an appointed commission, out of the limelight, would make the most sense.

    Except for the heads, all of the investigating agencies are still in the hands of people appointed by Obama.  If they prove unable to be non partisan we may have to do something like fire all of them and down size, but more things in Washington with power we do not need.  Washington does not fix things, ever.  A firing squad is always the preferred solution, but not for the investigatee.

    • #7
  8. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    I understand and identify with everyone not wanting to do anything to help the dems. I get it. So then the way this unfolds, more than likely, is that Rod Rosenstein will have the FBI continue the investigation. To some, the FBI can’t be trusted because of the association with Comey (although I’ve heard many say that the agents working on the investigation are trustworthy and diligent workers). At some point, whoever is in charge of the FBI (either the interim or a new appointee) will provide the results to Rosenstein with their recommendations. Rosenstein will make his decision (although I suppose he might ask for more information in some area.) The deal is done: No evidence of complicity with the Russians (highly likely) or evidence of complicity (highly unlikely).

    Meanwhile, during the investigation, the dems will continue their malicious diatribe about Trump and the Russians. In the public domain (which goes far beyond Trump supporters), this rhetoric will support what most people already suspect. The dems will  also tell the public that whatever the results are, and I mean WHATEVER they are, they will be bogus without a special prosecutor. (Remember, I DO NOT SUPPORT A SPECIAL PROSECUTOR). And this will be the message right up until 2018 and maybe beyond. What effect do you think this will have for Republicans who are running? For Democrats?

    Maybe my solution won’t get around this outcome; that’s what I was trying to avoid. I wasn’t trying to oblige the Democrats; I was trying to help the Republicans. Perhaps I just need to throw up my hands and say, whatever happens, happens.

    Any other thoughts?

    • #8
  9. Quinnie Member
    Quinnie
    @Quinnie

    Why even raise the question?   What rational/informed person thought a special prosecutor was necessary?  Noise and nonsense.

     

     

    • #9
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