Sessions should appoint a Justice Department prosecutor to investigate the investigators.
‘What’s good for the goose . . .” is more an understandable impulse than a useful rule of thumb in legal controversies, particularly legal controversies in which an error has been made.
The White House and congressional Republicans have watched in ire as the Trump administration has been tied in knots by the no-boundaries Mueller investigation. “Okay,” they’re thinking, “now, it’s payback time.” There appear to have been highly irregular investigative tactics used in probing the Trump campaign — particularly, but not exclusively, by the Obama administration. Why not, then, appoint another special counsel to squeeze the squeezers? Why not turn the tables?
It’s a bad idea.
Original Sin: A Prosecutor but No Crime
Deputy Attorney General Rod Rosenstein made a foundational error in appointing Robert Mueller to be special counsel to investigate . . . well . . . um . . . come to think of it, that was the error: The investigation has no parameters, and thus no limitations.
Investigations conducted by prosecutors are supposed to be rooted in known crimes — or, at the very least, articulable suspicion that known crimes have occurred. Under the governing regulations, to justify the appointment of a special counsel, those crimes must form the basis for two salient findings: (1) that the Justice Department has a conflict of interest so severe that it cannot conduct the investigation in the normal manner, and (2) that it is necessary to appoint, from outside the Justice Department, a quasi-independent prosecutor. This special prosecutor is to be given a grant of investigative jurisdiction limited to the crimes that the Justice Department is too conflicted to investigate — and no other crimes, unless the special counsel explicitly requests, and the Justice Department grants, an expansion of jurisdiction. (See here, where I address Paul Manafort’s claim that his indictment violates regulations limiting special-counsel jurisdiction.)
