Dear Reader,
Quick show of hands: who’s satisfied with the work done by our past five special counsels – Robert Mueller, John Durham, David Weiss, Jack Smith, and Robert Hur?
Anyone?
We’ve now got a meaningful sample size, and the conclusion is clear: it’s time to scrap the Justice Department’s special counsel regime. It looks fine on paper but, as we’ve seen repeatedly over the past decade, it just doesn’t work in practice. It’s not necessarily the fault of the appointed prosecutors, though their work has been uneven and flawed at times. The problem is the system itself.
The modern special counsel regulations came about as a political half-measure of sorts. After Watergate, Congress passed the Independent Counsel Act, which empowered the attorney general (with permission from a panel of federal judges) to appoint an outsider to investigate and prosecute powerful political figures, to minimize potential conflicts of interest. It made sense, in theory – until reality intruded in the personage of one Kenneth Winston Starr. The infamous independent counsel began by probing a convoluted Arkansas land deal tangentially involving the Clintons, and he wound up writing softcore porn featuring cigars and poetry books and pillow talk, plunging the country into a salacious, unnecessary impeachment.
Congress, scarred by the Starr experience, declined to re-up the independent counsel law, letting it expire with a legislative sunset in 1999. In its place arose a new set of non-statutory federal regulations empowering the AG to appoint a “special counsel” in cases presenting conflicts of interest or “other extraordinary circumstances.” The special counsel exercises the powers of a federal prosecutor, but without “day-to-day supervision” by the attorney general. At the end of an investigation, the special counsel must write a report “explaining the prosecution or declination decisions.” That report goes to the AG and then, typically, to Congress and the public.
Since the dawn of the Trump era, special counsels have delivered suboptimal results and sometimes worse than that, both prosecutorially and politically. Let’s take a quick spin through recent history.
Robert Mueller, hyped as the steely-eyed savior of democracy, conducted a revelatory investigation of Russian interference in the 2016 election but then spit the bit at the moment of truth. Rather than stating clearly whether Trump had committed an obstruction crime, Mueller gave us mush-mouthed bureaucratic double-talk: I can’t indict the sitting president, and I would say so if I could clear him, but I’m not necessarily saying that, but I’m also not NOT saying that, essentially. Attorney General Bill Barr eagerly stepped into the void and spun Mueller’s investigation right out of existence. Mueller left us with a dense tome of a report about Trump’s abuses, and zero consequences.
After Mueller, we were treated to John Durham. You remember the scowling, goateed menace who would make Trumpworld’s “investigate the investigators” vengeance fantasies come true. Turns out: not so much. Instead, Durham delivered one piddly guilty plea resulting in probation, two humiliating trials ending with not-guilty verdicts, and a pile of superfluous, regurgitated talking points about how Trump got set up by the Deep State.
The Biden administration has given us three special counsels. Shortly after the Hunter Biden plea deal fell apart at the last moment in July 2023, Attorney General Merrick Garland appointed David Weiss – who already was running the case anyway – as special counsel. That fixed precisely nothing. Now we’ve got two pending Hunter Biden indictments of undetermined merit, and distrust on both sides of the political aisle.
Garland also tapped Robert Hur as special counsel to investigate President Joe Biden’s retention of classified documents. Hur’s final report recommended no criminal charges but revealed that Biden knew he had sensitive classified documents at his home in 2017, and failed to return them to the government – contrary to repeated public assurances by Biden and his handlers that his possession of classified information was unintentional. (Biden is on tape in 2017, shortly after he left the vice presidency, telling a ghostwriter that he “just found all the classified stuff downstairs” – referring to materials on U.S. war policy in Afghanistan.) For all the substance in Hur’s report, it made headlines primarily for its excessively colorful descriptions of Biden’s old age and spotty memory.
And then there’s Jack Smith. It’s too early to make a final evaluation, but it seems increasingly likely that he will fail in his quest to try one or both of his Trump indictments before the November 2024 election. In the process, Smith has flouted DOJ policy and principle by straining to try Trump before the election (while dishonestly refusing to acknowledge the obvious reality that he’s doing just that).
Much of the controversy around any special counsel is unavoidable. By definition, special counsel exists only at the most fraught intersection of prosecution and politics, and getting rid of the regulations won’t make those tough cases magically disappear. But the Justice Department can do better here.
Recent history has exposed two overarching problems. First, anytime an AG appoints a prosecutor specifically to probe one particular person, there’s a natural tendency to go overboard. Starr is the poster child here, as he spent five years desperately pursuing the Clintons, all to uncover a handful of lies about a sexual affair. To lesser extents, Durham and Mueller strained to score political points apart from actual criminal violations, and there are legitimate questions about whether Weiss and Smith have bent normal practice in pursuit of their prey. I’ll cop to being less than a saint here myself; I took a similar approach when I was gunning to take down mob bosses by any means available. But it’s not the prosecutorial ideal. We’re supposed to start with the crime and pursue the perpetrator, not vice versa.
Second, the report-writing requirement has done more harm than good. It’s an ironclad prosecutorial canon that we do our talking in court; we don’t fling accusatory extrajudicial rhetoric against a person who hasn’t been indicted. Yet the special counsel regulations require prosecutors to do just that. Mueller, Durham, and Hur wrote hundreds of pages containing damning information about people who were never charged. It’s nice to have transparency in these high-profile cases – as a member of the media, I welcome it – but DOJ doesn’t exist to write novellas, especially about people who don’t face charges.
The special counsel regulations, in sum, enhance neither performance nor perception. So here’s my proposal: We don’t need a special set of rules for potentially sensitive political matters. DOJ should just treat those cases like any other. Personnel and expertise won’t be a problem. The AG can tap any of DOJ’s 10,000 or so federal prosecutors to handle any given case, and he can dedicate as many resources as necessary to get the job done efficiently. Nor does a “special counsel” label enhance DOJ’s investigative and prosecutorial efficacy. Both Durham and Weiss went from “regular prosecutor running the case” to “special counsel” midstream, during their investigations. The new titles changed little and fixed nothing.
At most, special counsel gains a bit more formal independence from the AG than a federal prosecutor ordinarily might have. But is that necessarily a good thing? Don’t we want the attorney general – the person who’s supposed to be directly accountable to Congress, the administration, and the public – to have the final say, and primary responsibility? If there’s a conflict of interest involving the AG, she can recuse and the deputy AG can handle it. This happens all the time, and it works just fine. And the special counsel designation does little to enhance public trust in DOJ. Did anyone feel better about the Durham or Weiss cases after their changes in title? Were any Smith or Hur skeptics won over by their status as “special counsel”?
Appointment of special counsel has become an all-purpose cop-out, a counterproductive crutch for AGs of both parties and for DOJ itself. The evidence is now clear: the modern special counsel regime has become untenable. It’s time to move on.
Stay Informed,
Elie
