The Last Special Counsel


Donald Trump shouldn’t fire Robert Mueller, but he should be the last special counsel.

The Mueller probe just took a Ken Starr turn with its lurch, via the Southern District of New York, into the Stormy Daniels affair.

After the Starr investigation in 1990s, there was a consensus that we weren’t doing that again, certainly not through the independent-counsel statute, which was allowed to lapse. The law put investigations on a hair trigger and carved out independent counsels, executive branch officials, from control of the chief executive in a constitutionally impermissible way. What resulted were endless politically fraught investigations that often exhibited a zeal disproportionate to the alleged crime.

It’s too early to render a verdict on Mueller’s work, not knowing the underlying facts, but he certainly appears to have become a kind of free-floating legal ombudsman.

In response to Trump’s blustery attacks on Mueller, a bipartisan group of lawmakers is calling for legal protections against the removal of the special counsel that would be an ill-advised step back toward the independent counsel statute. Instead, we should be thinking of whether this really is the best way to hold presidents accountable in the future. As a practical matter, it’s hard to imagine any administration ever permitting such an investigation to get unloosed again.

Even if Trump is fully vindicated, the probe has exacted a significant price in time, money and political capital. We’ve had a year’s worth of damning headlines about what Mueller is looking into, and a significant portion of the partisan case against Trump is based on his work.

Much of the left considers the Mueller probe a resistance march with subpoena power and a cadre of extremely able prosecutors. In his famous dissent in the Supreme Court case of Morrison v. Olson upholding the independent counsel law in 1988, Antonin Scalia wrote,“Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.”

This is why each side celebrates when it can get such an investigation going against a sitting president of the other party—and they know it will ramify in unpredictable, but certainly harmful, ways.

Scalia relied heavily on a speech from FDR’s attorney general, Robert Jackson. The future Supreme Court justice warned against prosecutors picking a person to investigate than a crime. “With the law books filled with a great assortment of crimes,” he said, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.”

So many years after Scalia’s opinion, it is still worth quoting Jackson at length: “In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.”

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