Balance the Scales - End the DOJ's special counsel power
Many critics focus on the need to rein in or even defund the FBI, but that won't be enough if special counsel powers remain the same.
The slow development and revelation of the Hunter Biden influence peddling schemes in Ukraine, China, and elsewhere is a perfect example of how the insider culture in Washington, DC and its parallels in the media and corporate America are resistant to reform, let alone restructuring. This is why the House Oversight hearings, as entertaining as they may be, are just that. Like MLB spring training, committee hearings don't actually count. They rarely translate into changes in policy without any reciprocity and cooperation from the executive branch. Until the Bidens are out of the White House and a new executive branch installed that will not cover for them, the oversight findings are only useful as material for the historical record. Merrick Garland recently appointed a special counsel to investigate Hunter Biden, but it is already being criticized as the person chosen to head the probe is David Weiss, the same US attorney who was responsible for extending a generous plea deal to the defendant that included no jail time and immunity from prosecution of a laundry list of other crimes.
So what could be the solution to shift inquiries from merely being academic to having a practical result? One place to start would be by creating a more independent federal law enforcement system, less beholden to the whims of each administration. The Department of Justice doesn't fit that profile. Each attorney general, deputy AG, and federal district attorney along with other senior personnel serve at the pleasure of the president and are confirmed by the Senate. Whether or not that changes, there has to be an office with real enforcement powers outside of the DOJ. I would propose the Office of Special Counsel (not to be confused with DOJ special counsel offices like those of Robert Mueller or Ken Starr), which is not a part of any federal department. It was formed in 1979 and is a federal agency tasked with investigating whistleblower complaints and wrongdoing within the civil service.
In May the OSC was instrumental in delivering findings of an investigation of US Attorney Rachael Rollins of Massachusetts for violations of the Hatch Act, and illegally leaking information to the Boston Herald concerning a possible investigation of a candidate for her previous position as Suffolk County DA. Nowadays the OSC lacks the teeth to bring charges, so its role is merely to advise federal departments and their inspectors general on illegal activity and misconduct by their personnel. It also has less than 200 full-time staff and is one of the more obscure elements of the federal bureaucracy. I propose that this office should be expanded and granted greater authority as a check on federal government abuses, to be called the Special Counsel Service. In order to understand the solution of this proposal, one must first look at the problems it is addressing.
Special Counsels have been vulnerable
Those that are paying attention to today's headlines probably see the merit of having a special counsel for certain situations, even though they may disagree with the mission of recent investigations. However, it's worthwhile to review the history of the role and how we got here as a nation to where one has been named to investigate a particular matter and yet many still do not have confidence that David Weiss will be willing and able to fulfill his purpose. Special counsel investigations have existed in some form in the US since 1875 when President Ulysses Grant appointed one, former US Sen. John Henderson to investigate a tax evasion scheme in Missouri known as the "Whiskey Ring" that involved several of his own appointees and some whiskey distillers. Once Henderson turned his sights on investigating one of Grant's personal secretaries he also had the dubious distinction of being the first special counsel to be fired by the president. Subsequent cases had their own problems: In 1949 President Harry Truman appointed Newbold Morris to be the "special assistant" to AG Howard McGrath in order to investigate potential corruption within the DOJ and other federal departments. But when Morris attempted to fulfill his mission by questioning high ranking officials including military brass using a questionnaire he ran into a brick wall and was fired by McGrath, who was in turn fired by Truman. Of course the most famous blow up of a special counsel investigation happened on October 20, 1973 when President Nixon demanded from his AG Elliott Richardson to fire Special Counsel Archibald Cox who was examining the Watergate burglaries. The resignations of Richardson and his deputy John Ruckelshaus along with Cox's firing by Solicitor General Robert Bork became known as the "Saturday Night Massacre" and became the textbook example of abuse of power by a president and the "break glass" moment when many started to realize that the White House had become unmoored from recognizing the limits of presidential power. By creating a permanent special counsel with expanded protections, the special counsel can be shielded from a retaliatory firing. The challenge then would be preventing it from becoming abusive of its own powers.
Special Counsel investigations drag on and suffer from mission creep
While the firing of Cox showed how easily a special counsel can be obstructed from above, the Watergate investigation was itself an example of how long and costly such investigations become. Launched in May 1973, the Watergate probe officially ended in 1977 and the special counsel was dissolved the following year after years and four special counsels. It cost $47 million numbers adjusted for inflation in 2018. After this there was an effort to reform the position and federal legislation created a three judge panel that would appoint special counsels between 1978 and 1983 when it was not renewed. In response to the Iran-Contra Affair, one of the murkiest and most complicated scandals in American history Edward Meese, attorney general under the Reagan Administration appointed Lawrence Shaw in December 1986 as an "independent counsel". Shaw's probe lasted until 1992 and led to the convictions of Vice Admiral John Poindexter and Lt. Col. Oliver North, and cost $81 million. Then there was the Clinton Administration during which multiple special counsels were named, the best known being Kenneth Starr. This era would validate a lot of concerns about the special counsel voiced by the likes of Prof. Alan M. Dershowitz who criticize the nomination of special counsels on due process grounds, because they are effectively assigned to investigate a person rather than a crime. There were many allegations of crimes and cover-ups under Clinton, and many of them were owed an investigation, but the probe originated from allegations of illegal real estate dealings known as "Whitewater"Â and would then encompass totally unrelated affairs like the death of White House deputy counsel Vince Foster, illicit campaign donations by Chinese donors, "Travelgate", the Monica Lewinsky affair, and various other sideshows. The foot dragging of Starr and his various counterparts meant that the investigations were largely perceived to be a waste of time and may have actually boosted the president's approval from the perception that he was being hounded solely for political reasons. By the time the investigations concluded it was 2002 and Starr had long given way to Robert Ray who issued the final report on Whitewater, Travelgate, and various other Clinton scandals to little fanfare.
A Special Counsel Service cannot totally solve this issue, but it can shift the position into one that initiates investigations based on criminal complaints with a defined scope. This is how the position operated during the late 1970s and therefore the investigations of that period were more focused and lasted for shorter periods. The tradeoff from this would be that other crimes discovered in the course of the investigation may be beyond its scope.
Special Counsels have become vindictive tools of retribution
In response to the high handed charging decisions of prosecutors like Special Counsel Jack Smith and his local counterparts Alvin Bragg and Fani Willis, former President Donald Trump has vowed to respond when re-elected president as he hopes in 2024 by appointing a special counsel to investigate the Biden family. The risk of having special counsels has always been that they stand to become partisan witch hunts, because in order for him or her to have credibility with the public the appointee must not be actively working in the president's administration and they also tend to at least officially from the political party that is out of office. Trump's statement is actually a self-defeating one in that he is openly vowing to use the special counsel in a manner that it is explicitly not supposed to function: to settle scores with his persecutors. His supporters would no doubt be thrilled if he were to exact revenge on Biden, the Deep State or other tormentors, but that’s not the way American justice is supposed to work.
But how did America get to the point where the former president is being investigated and indicted by the DOJ of his opponent and is vowing to respond in kind if or when he takes office again? When we examine the history of DOJ special counsels more often than not they are accused of political interference. Even Lawrence Shaw was accused of sandbagging Pres. George HW Bush by filing an indictment in October 1992 against former Defense Secretary Caspar Weinberger that reflected unflatteringly on Bush only one week before the election that he lost to Clinton.
When Donald Trump was elected in 2016 the politicization of special counsels reached levels that his predecessors could not have imagined. For one thing, the first special counsel nominated to investigate Trump was Robert S. Mueller, the former FBI director under president's Bush and Obama. He was assigned by Deputy AG Rod Rosenstein with investigating Donald Trump's campaign over allegations of illegal collusion with Russia during the election. AG Jeff Sessions had recused himself over his own potential conflict of interest due to reported meetings with Russian Ambassador to the US Sergei Kislyak. However, Robert Mueller had an even greater conflict of interest in that he was the mentor of former FBI director James Comey who succeeded him as head of the Bureau. Comey had been fired by Trump less than a weak earlier for leaking investigation details to the media not long before Mueller was appointed.
On top of the Comey connection, Mueller’s lead counsel in the investigation was Andrew Weissmann, another former DOJ attorney who was present on Election Day 2016 at the Clinton campaign celebration. These investigators could not be expected nor trusted to separate their personal or political biases from the job of investigating the president. An independent Special Counsel Service would have to be staffed by attorneys and investigators with no political affiliation and backgrounds that do not include working for the federal government, or at the very least the DOJ.
Special Counsels have trampled on defendants' due process rights
Both Robert Mueller and Jack Smith have broken new ground in their abuse of the prosecuting powers of which they have been invested. During Mueller's probe the operating premise was that there was criminal interference by Russian state actors in the 2016 election in concert with or encouraged by candidate Trump or surrogates of his. Not only was this not proven, but a series of individuals was convicted and in many cases served time in prison for crimes unrelated to the underlying unproven allegation. Trump's elderly former associate Roger Stone was convicted for false statements, witness tampering and obstruction of justice for embellishing his role in Wikileaks' publishing of the Clinton classified emails, all of which had nothing to do with Russian collusion. CNN miraculously was able to get exclusive footage of Stone’s arrest in a pre-dawn FBI tactical team raid more appropriate for a drug kingpin. Here are some other defendants convicted by the Mueller probe investigation that may be unfamiliar to the reader:
Alex van der Zwaan was convicted for making false statements to the FBI. A Dutch lawyer, van der Zwaan's role in the "Russian collusion" saga was limited to having written a report with codefendants Paul Manafort and Rick Gates in furtherance of lobbying efforts for the government of Ukraine under then pro-Russian president Viktor Yanukovych. The nature of his false statement was that he did not correctly report his last communication with Gates. He was sentenced to 30 days in prison and was deported to his native Netherlands after completing his imprisonment.
Richard Pinedo owned a website that sold private banking information illegally to Russians in 2016. He was convicted of identity fraud and sentenced in 2018 under the Mueller probe.
George Papadopoulos was a junior campaign foreign policy aide. He was convicted for lying to a federal agent after he was entangled by a number of meetings in Europe with Maltese professor Joseph Mifsud purporting to have dirt on Hillary Clinton. Mifsud’s professional affiliations suggest he was more likely a western intelligence contact, not Russia’s, and he may have been at the center of an entrapment scheme. He was sentenced to 14 days in prison and fined $9,500.
Nothing within the Mueller report suggests that any of these men played any role in a plot related to the 2016 election, yet the Mueller team saw fit to include them under the umbrella of defendants in the matter. This is why so many commentators made the observation, even if in private interactions caught on video by undercover journalists like CNN's Van Jones did, that Robert Mueller was appointed to investigate a "nothingburger". There was plenty of bun, as in accusations and aspersions, and toppings in the form of crimes unrelated to the primary cause of the investigation, but at the root of it all the DOJ had appointed a special counsel in order to investigate a crime that did not happen. Indeed John Durham's investigation discovered from interviews (Durham Report, page 63) with former CIA Director John Brennan and his deputy David Cohen that neither man had any evidence to support the accusation of a Trump-Russia conspiracy at the same time Brennan had appeared on the MSNBC program Morning Joe in order to dispute the Mueller Report findings and hint that he suspects that there was more evidence than what Mueller uncovered.
Removing the special counsel appointment power from the DOJ and transferring it to a truly independent service would not solve all concerns, but there would be no repeat of the egregiously biased and needlessly punitive nature of the Mueller Special Counsel investigation. I see an expanded role for the Special Counsel Service as a "watcher of the watchers", not just of the FBI but also of the other intelligence agencies and federal departments, but it would have to be done cautiously. The office should have the ability to open criminal investigations and conduct prosecutions of federal employees, elected officials, and federal political candidates, and absorb those duties from the FBI and DOJ that have proven they cannot adequately investigate such cases consistently and without bias. While the Office of Special Counsel has as of yet remained relatively untainted by partisan politics, the process of choosing and confirming its leader should be above reproach, perhaps requiring authorization from Congress or SCOTUS so that it may remain truly independent of the executive branch. Special counsels appointed from the DOJ are ultimately subordinated to the attorney general, and can be fired by either the AG, Deputy AG, or president. Who should be placed in that position above the Special Counsel Service? It cannot be totally a law unto itself, that was found to be unconstitutional in the case of the Consumer Financial Protection Bureau. Structuring this agency within the federal government may prove to be a constitutional enigma, as would any measures to ensure that leadership and staff refrain from being active in partisan politics and work within the bounds of the law and their budgetary limits.
Amid the fireworks of the committee hearings, plea deals, indictments, and leaks, I cannot help but have the sense of despair that the system will not allow itself to be reformed given that it has allowed such brazen wrongdoing to go on unimpeded. Nevertheless, in order to dig out of a hole this deep we should still think of how to build a better system to replace the broken one.