Why The Special Counsel Ain’t Special Enough To Stop Trump

This week the US and the world received a well-deserved bit of relief from the scandal-plagued disaster that is the Trump Presidency: Deputy Attorney General Rod Rosenstein has appointed former FBI Director Robert Mueller as the Justice Department’s Special Counsel for the investigation into the Trump Campaign’s ties to Russia. This is undeniably welcome news; the furor ensuing from Donald Trump’s decision to fire FBI Director James Comey has revealed that Attorney General Jeff Sessions has no intention of respecting his promised recusal from matters relating to the Russia investigation. Appointing a Special Counsel to investigate the Trump-Russia connection effectively prevents Sessions from polluting or controlling the information and decisionmaking within the investigation. However, the Special Counsel is an internal position governing a specific investigation within the Justice Department. He is still controlled by the Executive Branch, which can fire him and control his access to resources.

Right now, the Republican Party, whose leaders have stood behind Trump’s every provably false tweet, have no claim to objectivity or, frankly, integrity. They also control two of the three branches of government. Any effective investigation must be taken out of their hands.  That leaves us with two types of independent investigators that have been used before: independent counsels and independent commissions. In order to figure out which solution fits the problem, we have to ask ourselves: what is the most critical outcome of this investigation? Is it criminal prosecution, proven beyond a reasonable doubt, or is it a full and fair assessment of all the evidence from all sources, in a form presentable to the American People (and usable by Congress for impeachment)? I think it is the latter, and the only way to properly hold Trump accountable and restore the integrity of our Republic is for Congress to get a veto-proof majority together and form an independent commission to investigate Trump’s connections to Russia.

Independent Prosecutions have been nasty, brutish and very, very, long

After Richard Nixon stepped down as a result of the Watergate scandal, Congress passed the Ethics in Government Act, which authorized either Congress or the Attorney General to create a special prosecutor (later an Independent Counsel) to investigate the misdeeds of elected officials. The results of that law were mixed – Congress allowed it to expire in 1999 for a reason. The Independent Counsel was overseen by a three-judge panel of the United States Court of Appeals for the DC Circuit, but in reality, he had expansive power, and that power was frequently abused. As David Frum ably explained in The Atlantic, a prosecutor is exclusively tasked with finding crimes to prosecute. As with most prosecutors, Independent Counsels tended to go after any crime they could find, even if it was only tangentially related to the matter they were appointed to investigate. Possibly the best example is Kenneth Starr, the Independent Counsel under Bill Clinton, who managed to turn the investigation of an inept real estate deal into an impeachment over a semen-stained dress. The Counsels who investigated Presidents, Starr and Lawrence Walsh, who investigated Reagan’s involvement in the Iran-Contra affair, each took seven years to conclude, and neither found prosecutable Presidential misconduct. The difference between crime-finding and truth-seeking is significant, and it is unlikely that an Independent Counsel would give Congress, the American public, and the world the assurance we need that the American President, the most powerful man on earth, is not wholly compromised. While the FBI Investigation into Trump’s Russia connections is critical, a prosecutor is not the right person to gather the whole picture and present it to the American people.

Everyone can trust an Independent Commission of politically disinterested experts

An Independent Commission created by Congress is a group of appointees from outside government who engage in fact-finding about a clearly defined subject. No branch of government oversees the content of the investigation (although Congress, as always, has the power of the purse). At the end of the investigation, the Commission produces a report laying out all of their findings. A good example of this is the 9/11 Commission. Because Independent Commissions are tasked only with fact-finding, they would be able to draw inferences and report intelligence and other information on Russian activities that might never be usable in a court of law. A 9/11 Commission for Trump-Russia could provide ample evidence for Congress to start the political process of impeachment, which is distinct from the criminal process of indictment and prosecution. No prosecutor can do that. Moreover, an Independent Commission includes individuals from different ideological viewpoints who do not have skin in the political game. The 9/11 Commission was credible because it was bipartisan and because no one on the Commission was seeking reelection. We need that kind of credibility right now, and there really are no downsides, unless you are Donald Trump or his associates, and you have something to hide.

Congress has to stand up to Donald’s Trump card

The only problem with an Independent Commission (or, for that matter, a new Independent Counsel authorization act) is that Donald Trump has to sign the authorizing legislation into law. I don’t think anyone doubts that Trump, if given the chance, is going to veto any legislation authorizing anyone to investigate him. We know he does not care about optics; the man fired his FBI Director and then told the international news media that he did so because he didn’t like being investigated. However, the Constitution gives the first branch of government the right to override a petulant President’s veto. It is time for the Republican Party to rediscover its moral fiber. Trump, as odious as he is, is not the best evidence that our Republic is in danger. The cowardice of Congress is our real problem. Each branch of government is given rights and duties under the Constitution. Congress does not just have the right to act as a check on the President, it has the duty to do so. The Republican Congress is trying to avoid the truth about what it has inflicted on this country, and that abrogation of duty has the power to unbalance our government permanently. Congress needs to grow up and appoint some truth-seekers. As Justice Louis Brandeis once wrote about the value of publicity,  “Sunlight is said to be the best of disinfectants.”



2 thoughts on “Why The Special Counsel Ain’t Special Enough To Stop Trump

    • Scalia’s seat was filled by another Scalia and Anthony Kennedy is scarcely in line with the Republican Party. The man has written every gay rights opinion since 1996, signed on to a major opinion protecting choice last June, and has gradually been chipping away at the death penalty for years. Let’s not get hysterical. Judges are not politicians, and if you honestly think Kennedy and even John Roberts are going to put up with Trump, you’re just plain wrong. I would humbly suggest 😉


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