Republicans, whether in the White House or on Capitol Hill, do not seem to appreciate how much they may be undermining what they say they want — a serious investigation of the Clinton Foundation and such related matters as the Uranium One transaction, the interplay between the foundation and the operation of the State Department during Secretary Clinton’s tenure, and the question of whether that interplay explains the use of the improper private email system and the destruction of tens of thousands of emails.
The president has been railing about his own Justice Department’s apparent inaction (after signaling, post-election, that he did not want to see the Clintons further investigated and prosecuted). A group of House Republicans has taken up this cause and is pushing for the appointment of a special counsel. In essence, it is a tit-for-tat maneuver: There is a special-counsel probing Trump ties to Russia, they reason, so why not a special-counsel to probe Clinton ties to Russia?
This suggests a basic misunderstanding about what triggers a special-counsel investigation: There must be potential offenses that warrant investigation as to which the Justice Department has a conflict of interest that would make its conducting the investigation inappropriate.
Preliminarily, we should note that there is no such thing as an independent counsel. In our constitutional system, prosecution is an executive power, so even special counsels ultimately report to the Justice Department’s leadership. That being the case, we should never have a special counsel unless one is absolutely necessary. It is pernicious to have a prosecutor who is assigned to make a case on a single target (or set of targets). These prosecutors are insulated from the pressures of an ordinary prosecutor’s office, where cases have to compete for resources and only the meritorious ones are pursued. Thus, the sorry history of the special counsel (and its predecessors — the “special prosecutor” and “independent counsel”) is empire-building, investigations that go on for years, and cases involving trivial charges often far removed from the suspected offense that was the original rationale for appointing the special counsel.