By |2019-02-15T20:57:37-07:00February 15th, 2019|
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Just under a year from now, on February 3, 2020, Iowa will hold its caucuses. A month later, the Democrats and the Republicans both will likely have a prohibitive favorite for the presidential nomination after Super Tuesday cements their insurmountable leads. In other words, very soon, President Trump’s opponents will have the opportunity to remove him using the ordinary and regular procedures of an election.

Now, before we can know the outcome of the 2020 election, it is the perfect time for both sides reflect on the inherent evil of the political special counsel. And now is the perfect time to consider reforms that can be taken to prevent and endless seesaw of sore losers undermining their political opponents with spurious special counsels and investigations.

When one looks back at the Clinton impeachment proceedings, one realizes that Mueller’s team may already have used up too much of the calendar to complete the impeachment/trial process without sailing into the overwhelming political headwinds of an ongoing presidential election cycle. Following the Clinton model, we can anticipate that even if Mueller were to issue his report immediately, the trial would conclude, in the best case scenario, sometime in the July 2019 timeframe. Every month that goes by, Mueller loses more time in which to complete a trial in the Senate before the election.

Suppose the Democrats succeed in dislodging President Trump through the 2020 election. How many days after Election Day 2020 before the enemies of the incoming president plot to have a new special counsel appointed in order to reverse the 2020 election? For Clinton in 2016, it didn’t take long. In 2016, we learned it may have happened almost immediately.

In a strategy meeting convened at Washington’s Mandarin Oriental Hotel in the days following Clinton’s election loss, George Soros and other rich Clinton supporters met to, “retool the big-money left to fight back against Donald Trump.” The meeting was organized with a post-election Clinton campaign promise to “take back power.” We’ve since learned that Soros and a group of mystery donors poured $50 million into a war chest, including post-election funding for Fusion GPS to continue linking Trump to Russia. Then-FBI director James Comey used the Fusion GPS material to brief (threaten?) Trump and and leaked a memo referring to the Fusion GPS Russia smear to prompt the appointment of a special counsel.

So to recap, after Hillary Clinton lost the election, her financial backers (including George Soros) funded the salacious and unverified information that Comey relied upon to get his friend, Robert Mueller, appointed as a special counsel. Mueller then appointed Clinton donors, supporters, and a former Clinton foundation attorney to staff the special counsel’s office. It would be interesting to know whether there was any overlap between the attendees at the Mandarin Oriental Hotel meeting and membership on the special counsel’s team.

If it were possible to have a non-partisan discussion over the Mueller probe, no reasonable person would maintain that the Mueller team’s staffing and origins were free from political influence. Indeed, even if the team does find evidence of actual Russian collusion, the credibility of any such finding will be obscured by the obviously partisan origins of the effort. Is it any wonder that a majority of Americans see the special counsel investigation as politically motivated?

Who possibly could have foreseen that a special counsel would transform into a political revenge exercise by Clinton supporters and donors? Practically everyone. After the Clinton impeachment proceedings, this very situation was widely feared and anticipated. Following the expiration of the Independent Counsel Statute in 1999, Hastings Law Journal published remarks by James K. Robinson, who led the Justice Department’s criminal division at the time, discussing the prevailing bipartisan skepticism surrounding the idea of an independent counsel. Robinson observed:

The potential the Act created for political abuse and manipulation of the criminal justice system by those opposed to the administration was troubling . . . . Indeed, it was our conclusion that the very processes and procedures of the Act itself had contributed to a sense of cynicism and negativity among the citizenry during recent years. We also concluded that far from protecting the process from allegations of partisan political considerations, the Act did just the opposite.

Robinson, who died in 2010, also noted the importance of keeping the prosecutors free from conflicts of interest, or else, “public confidence in the fairness and thoroughness of the investigation simply could not be achieved.” Or consider this warning: That the independent counsel “warped out of all proportion the handling of minor, even petty matters that under any other circumstance would have been quickly and appropriately resolved by career prosecutors.”

Assistant Attorney General Rod Rosenstein is supervising an investigation into his own actions. Jeannie Rhea and Andrew Weissmann can use their perches within the Mueller team to exact revenge on an election result adverse to their candidate and former client. Mueller can protect his friend Comey and get payback for Comey’s termination. We can all cluck that none of these people would be influenced by these apparent conflicts of interest. But how credible are these prosecutors and investigators who are already personally-invested in the guilt of their target before the investigation even begins? Can we find a basis for launching an independent counsel that does not spring from a political opponent’s opposition research subcontractor?

Kenneth Starr’s investigation into Bill Clinton started with a land deal in Arkansas and ended up investigating a sex act that happened in the White House. One cannot avoid the parallels between Stormy Daniels and Monica Lewinsky and how both Starr and Mueller ended up mired in sex stories having nothing to do with the original mandate for their investigations. Has Mueller already “solved” the question of whether Trump colluded with the Russians? The mere fact that he’s moved on to stories about sex with porn stars seems to suggest he has.

While many compare the Russia collusion story to Watergate, this comparison actually indicts the extreme unfairness of the Mueller probe. If you want a step-by-step contrast between the relatively apolitical special counsel in the Nixon-Watergate scandal and the mirror opposite in Mueller, read here.

For Democratic presidential candidates such as Senator Cory Booker (D-N.J.) or Senator Kamala Harris (D-Calif.), it’s not too soon to think about whether some bipartisan reforms could prevent a Republican version of a Robert Mueller investigation immediately following the inauguration of 2021. Perhaps a presumed time limit on an investigation (maybe 180 days)? Ninety days is how long it took to indict the original Watergate burglars and special prosecutor Archibald Cox was on the job a mere 154 days.

Perhaps some reform to the clear abuses of recusals that seem only to take place along partisan lines? Perhaps a ban on “other matters as they arise” jurisdiction which currently allows a special counsel to investigate 10-year-old sexual encounters between consenting adults? It would also be helpful if the Justice Department would safeguard against using the powerful prosecution and surveillance tools to muck about in domestic elections.

Unaccountable political prosecutors are a delight to the permanent ruling bureaucracy in D.C. because they keep the voters’ representatives in the White House and Congress occupied while they run business as usual. We seem to have lost any sense of writing and applying rules in a way that the outcome is fair regardless of the politics of the affected party. But those who rejoice today should remember that the worm can turn. For every Robert Mueller, there’s a Ken Starr.

Photo Credit: Bryan Chan/Los Angeles Times via Getty Images