A not-so-quiet consensus among the Washington, D.C. elite—the “Permanent Bipartisan Fusion Party,” as Michael Walsh calls them—holds that President Trump is a direct threat to their interests and must be stopped at all costs. When Hillary Clinton and the Democrats (and their cronies in the media) failed to derail Trump in the presidential election, this unelected, bloated administrative state swung into action against him. Today, an unrestrained, “independent” special counsel is rampaging through the White House, looking for Russians under every bed and in every bathroom.
The problem with special counsels (or special prosecutors, as the terms are used interchangeably) isn’t so much that they’re ineffective; rather, it’s that they are divorced from the traditional constitutional checks-and-balances that we rely upon to protect us from an overzealous state. It’s important to note also that, while many Trump supporters soothe themselves by stating that bringing on a “special counsel” to investigate potential Trump-Russia connections is not as bad as bringing on a “special prosecutor,” there is no real distinction between them in terms of the danger they pose to the Constitution.Whether one is talking about a “special counsel,” a “special prosecutor,” or an “independent counsel,” they are all governed by the same rules and regulations and all three positions share virtually the same amount of unchecked power.
A special counsel may be independent in the sense that he does not take orders from anyone in particular within the government, but that doesn’t make him impartial. Indeed, if investigatory objectivity were the goal, why not call him a “special investigator”? A counsel or a prosecutor is someone in the business of proving citizens committed criminal acts. Prosecutors operate from an assumption of guilt on the part of those they are investigating. It is only constitutional checks-and-balances that prevent prosecutors from running roughshod over individual rights. Remove those constitutional safeguards, as the regulations governing special prosecutions do, and the pursuit of justice can turn quickly to injustice. In fact, the special prosecutor investigating potential illicit Trump-Russian ties is disinterested in finding the truth of such claims. The investigation is without a doubt, the tip of the administrative state’s spear being thrust at the heart of the Trump Administration.
The problem with special counsels (or special prosecutors, as the terms are used interchangeably) isn’t so much that they’re ineffective; rather, it’s that they are divorced from the traditional constitutional checks-and-balances that we rely upon to protect us from an overzealous state.
In the case of naming former FBI Director Robert S. Mueller III as the special counsel (again, there is no real difference between a special counsel and a special prosecutor) in the Trump-Russia case, the injustices are only beginning. President Trump won a heavily contested election that he was not supposed to win. Out of that crucible they endured, Trump’s enemies have responded in kind and arrayed a formidable host of bureaucratic and political challenges that he must surmount in order to have a chance at enacting his agenda for radical reform. Thus far, the entrenched political interests in Washington have only been able to slow him down. With the presence of a special counsel, however, those unelected special interests have a fearsome weapon to wield against Trump. Mueller is, in popular media, above the law. And while Mueller served his country well at the helm of the FBI, he still has a retinue of conflicts of interest on this matter, and should not be the special prosecutor in the first place.
We’ve seen what special prosecutors can do to a presidency. Richard Nixon, a man who was absolutely guilty of wrongdoing, was not taken down by the Watergate break-in itself, but rather he was undone by his failure publicly to acknowledge, apologize, and move on from that crime. It was the cover-up that led to Nixon’s ouster, not the original crime. Part of the cover-up involved firing the Watergate special prosecutor. That move—dubbed the “Saturday Night Massacre”—became more of a scandal than the actual Watergate break-in did. Yet, the fact that Nixon was complicit in the coverup of the Watergate break-in underscored why his attempt at firing the special prosecutor was met with such public resistance.
During the Clinton Administration, Kenneth Starr was named as a special prosecutor to determine whether the Clintons had been involved with illegal real estate transactions when they lived in Arkansas. Although these claims were never fully verified in the eyes of the law, the fact that Starr had the powers of a special prosecutor meant that he could go digging into all aspects of the Clintons’ lives. And so he did. If Starr wasn’t going to bring Clinton down for Whitewater, the alleged illicit real estate transactions, then he could certainly complicate Clinton’s life by investigating his extramarital affair with White House intern Monica Lewinsky.
Contrary to public opinion, Clinton’s repulsive extramarital affair with Lewinsky was not the reason his presidency was almost ruined. Bill Clinton was impeached because he lied to a grand jury about the affair. Even though the Senate voted not to remove him from office, Clinton was disbarred and could not practice law after he left the White House explicitly because he lied about his affair under oath.
The special prosecutorial investigation is a political witch hunt that should be disallowed to continue, given the fact that special prosecutorial investigations have a way of permanently undermining an administration’s ability to govern, as it was elected to do. The bureaucracy should not be allowed to place its desires above the will of the American people.
In the case of the Valerie Plame “scandal” during the George W. Bush Administration, then-Deputy Attorney General James Comey nominated his old friend Patrick Fitzgerald to be the special prosecutor investigating that issue. Fitzgerald assumed that both President Bush and Vice President Cheney were responsible for leaking the name of Valerie Plame to the press. Plame was a CIA agent whose identity was protected. She claimed that the Bush team retaliated against her in the media because her husband, Ambassador Joe Wilson IV, opposed the administration’s claims that Iraq possessed WMDs. The special prosecution could not prove that either Bush or Cheney had anything to do with the leak. So Fitzgerald set his sights on Cheney’s chief aide, I. Lewis “Scooter” Libby. Ultimately, Libby was convicted not of leaking, but of a process crime. In the aftermath of this event, the Bush Administration was never fully able to implement its agenda.
As you can see, a special prosecutor rarely takes his targets down for the crimes that he has been called in to investigate. The open-ended nature of a special prosecutor’s job description implies that his investigation inevitably will result in a conviction for something. While I don’t condone criminality, I am suspicious of unleashing unchecked prosecutorial powers on anyone—even our political leaders. Especially when such unchecked power can be used to nullify the results of a free and fair presidential election—as is the case in the Trump investigation.
Unlike the examples in both the Nixon and the Clinton investigations, the targets of the Bush special prosecutor were not guilty of what they initially were accused of doing. The comparison to Trump is apt. The accusations that the president and his senior campaign aides colluded with Russian intelligence to leak damning information about Hillary Clinton and the Democrats to the media throughout the 2016 campaign are unsubstantiated and legally unprovable.
Further, claims that Trump is a Russian stooge are based entirely on what is known to be a fabricated document. Trump is innocent. The special prosecutorial investigation is a political witch hunt that should be disallowed to continue, given the fact that special prosecutorial investigations have a way of permanently undermining an administration’s ability to govern, as it was elected to do. The bureaucracy should not be allowed to place its desires above the will of the American people.
Speaking before a Senate committee yesterday, Deputy Attorney General Rod Rosenstein claimed he could not interfere with Mueller’s investigation even if he wanted to. Rosenstein cited special prosecution regulations enacted during the last year of the Clinton Administration as evidence of this fact. Yet Neal Katyal, the former Clinton solicitor general (and the person who wrote those regulations), claimed in a Washington Post article last month that the attorney general (or, in this case, the deputy attorney general, since Jeff Sessions inexplicably recused himself from the investigation) can interfere with a special prosecutorial investigation. What’s more, a president can order his attorney general to interfere with a special prosecutorial investigation. After all, the regulations enacted during the Clinton Administration exist within the confines of the constitutional framework that governs our country.
That means the rules are subordinate to Article II of the Constitution, which gives the president full prosecutorial power. And, since any federal prosecutor works for the president, they ultimately serve at his discretion. I know not why Rosenstein stated under oath that he was disallowed from interfering with the investigation if President Trump asked him to. Rosenstein should immediately correct the public record.
Come to think of it, the president doesn’t even have to rely on the attorney general to carry out his orders. He could simply override the Clinton-era regulation and fire Mueller himself.
The entire concept of a special prosecutor is silly. After all, we have an elephantine Department of Justice and an attendant FBI that is more than capable of conducting investigations within the confines of the law. Trump should just overrule the special prosecution regulations and fire Mueller directly—especially given how Rosenstein tainted his own credibility on the matter. Rosenstein not only failed to acknowledge that he could easily fire Mueller, regardless of any Justice Department rules, but claimed he would not fire Mueller if Trump ordered him to. Frankly, Rosenstein should go, too, for insubordination. But forget going through either Sessions or Rosenstein. Just get rid of the regulation entirely.
Such a spectacle would demonstrate to the wonderfully loyal Trump voters who they would need to vote against in the pending Republican primaries in 2018. I can assure you, the Republicans would likely back down if Trump called the “Permanent Bipartisan Fusion Party’s” bluff and just overrode the regulations and fired Mueller.
Further, if Trump were to do this, he would be able fully to define who his enemies in the Republican Party truly are. Why? Because firing Mueller would place the onus on the Republicans in Congress. Since they possess majorities in both houses of Congress, the GOP could either decide to let the matter drop (which they should), or they could decide to double down on their own ongoing investigations into the matter. Such a spectacle would demonstrate to the wonderfully loyal Trump voters who they would need to vote against in the pending Republican primaries in 2018. I can assure you, the Republicans would likely back down if Trump called the “Permanent Bipartisan Fusion Party’s” bluff and just overrode the regulations and fired Mueller.
The country and the Trump Administration must move beyond this ceaseless whisper campaign. It is time to govern. Critical issues that got Trump elected in the first place are falling by the wayside, as Congress nears its summer recess. The Trump Administration will be unable to implement its sweeping agenda of radical reform if things continue going (or, rather, not going) as they are.
Tax reform, immigration, and healthcare reform are all still on the table. They shouldn’t still be in their development phase. But they are held up, because of the distraction that this silly investigation provides our easily distracted and unwilling legislators. President Trump will never be able to govern the way that he desires under the pall of a special prosecutorial investigation. And, the closer to the 2018 midterms the country nears, the more cowardly and risk-averse the congressional Republicans will get. For Trump to govern boldly, he needs to end the administrative coup effort against him at once.
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