James Burnham No More Special Counsels It’s past time to put an end to one of the most destructive regimes in American law enforcement.
https://www.city-journal.org/article/no-more-special-counsels
Few innovations in American law enforcement have done more damage than “independent” prosecutors. Independent and special counsels have upended every presidential administration that has encountered them. They have never yielded benefits commensurate with their costs. They should be abolished.
From my perch at the White House Counsel’s Office, I was a front-row observer of, and direct participant in, Robert Mueller’s investigation of Donald Trump. What I saw then confirmed to me the fatal flaws of the special-counsel regime—flaws that, by now, should be obvious to everyone.
The current special-counsel regulation dates to 1999, the year Congress allowed to expire the Ethics in Government Act of 1978, which inaugurated the role of independent counsel. That 1978 statute, a post-Nixon ethics reform, created “independent counsels” who, once appointed, wielded the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.” These independent counsels reported to nobody, and they could only be removed for “good cause” and “by the personal action of the Attorney General.”
By the turn of the century, this regime had achieved bipartisan notoriety, spurring multiple Supreme Court cases, prompting perhaps Justice Antonin Scalia’s finest opinion (his solo dissent in Morrison v. Olson), and enabling the endless prosecutorial stalking of executive-branch officials.
Congress’s letting the independent-counsel statute expire should have ended the matter. Yet rather than make a clean break, the Department of Justice made a grave, if understandable, error. It adopted a regulation maintaining independent prosecutors but housing them within the Department of Justice under the supervision of the Attorney General. The department believed it was improving the lapsed statute by continuing to exempt these “special counsels” from the attorney general’s “day-to-day supervision,” while making such prosecutors—unlike independent counsels—ultimately answerable to the attorney general for their investigative and prosecutorial actions.
Experience has proved this system to be no better. For one thing, it does not solve the biggest problem with independent prosecutorial offices—that prosecutors and agents join teams dedicated to pursuing a specific person or group of people. In these supremely political investigations, people who are politically hostile to the investigatory target invariably jump aboard.
Consider, for example, the largely Republican group of lawyers (including a future Supreme Court justice) who assisted Independent Counsel Kenneth Starr, or the largely Democratic group of lawyers (including the current solicitor general) who assisted Special Counsel Mueller. The theoretical benefit of “apolitical” special counsels becomes farcical when their teams have plain partisan leanings.
Beyond partisan selection bias, tunnel vision dominates. Special counsels operate with unlimited funding, little oversight, and no obligation to pursue other crimes—bad dynamics, to put it mildly, for dispassionate law enforcement. Freed from the normal constraints that force prosecutors to exercise discretion and shepherd finite resources, special counsels inevitably overturn every stone before deeming their task complete, regardless of those efforts’ broader consequences.
The regulation’s tethering of special counsels to the attorney general doesn’t achieve much, either. Attorneys general who appoint special counsels do so to reduce intense political pressure on the Justice Department, seeking to separate the institution from the investigation and any resulting prosecutions. Having taken that step, attorneys general never meaningfully supervise their appointees. As former assistant attorney general Jack Goldsmith recently noted in a piece advocating for the special-counsel regulation’s repeal: “Checking special counsels’ excesses . . . invariably seems like political meddling or cover-up.” As political fires roar, supervision is seen as just more kindling.
Hard-charging investigations into White House staff might be thrilling for partisans, but they are costly to governance. As I saw firsthand, the Mueller investigation imperiled Don McGahn’s ability to discharge his vital duties as counsel to the president. The White House counsel is the president’s go-to source for legal guidance on questions of national and global significance. The president-counsel relationship is among the most important in any administration and was particularly crucial at that time given the strained relationship between President Donald Trump and Attorney General Jeff Sessions. The Mueller investigation made it nearly impossible for McGahn to perform his official duties by subjecting him to days of interviews and prompting countless leak-fueled stories that stoked White House divisions.
Perhaps the most pernicious feature of the Justice Department’s special-counsel regulation, though, is its requirement that such prosecutors provide the attorney general with “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” Special counsels have taken this provision as authorization to draft novellas about their investigatory targets and those targets’ assorted misdeeds. We are treated to the special counsel’s view of whether uncharged individuals may have committed crimes, why certain people were not criminally charged, and so forth.
It’s difficult to overstate the degree to which this prosecutorial exegesis on uncharged investigatory targets departs from the Justice Department’s typical practice. In all other contexts, the department either charges someone with a crime, or it doesn’t. If it declines to bring charges, that is the end of the matter. There is no mechanism—and it would violate established department policy—to castigate an uncharged target with a written accounting of his supposed misdeeds. That is why it was so shocking when then-FBI director James Comey held a press conference to condemn Hillary Clinton during the 2016 election. His public statements defied the department’s most basic rules. Yet making such declarations is in the special counsel’s job description.
While the regulations seek to cabin the danger by putting the attorney general in charge—only the attorney general “may determine that public release of these reports would be in the public interest”—the cat has left its bag by the time this “report” shows up in the attorney general’s inbox. The public knows that the investigation is over and a salacious report has been drafted. No attorney general has the practical ability to cashier the report. Attorney General Merrick Garland even called it “absurd” to suggest he should have withheld or redacted Special Counsel Robert Hur’s report, despite its negative statements about Joe Biden, the investigatory target.
Nor does any concrete countervailing benefit justify maintaining this destructive regime. Independent oversight of the president? The president is the nation’s chief executive and oversees all executive agencies, including the Justice Department. Department regulations cannot constrain the president’s powers. The president has the indisputable legal authority—at any time and for any reason—to order the attorney general to repeal the special-counsel regulation, terminate a special counsel, and shut down any ongoing investigation. What stops this from happening is not the special-counsel regulation, but the extraordinary political blowback such a president would face.
Those same political forces would equally constrain a president who sought to terminate a well-founded Justice Department investigation proceeding under regular order. The attorney general needs no special regulation to assign a sensitive investigation—even one involving the sitting president—to a U.S. attorney or career prosecutor, or to give such a prosecutor operational latitude. A president who interfered in such an investigation would face noisy resignations, congressional intervention, and more.
It is politics that constrains reckless presidents—not internal department regulations. The regulation creates the illusion of independence, but it does not and cannot supply its reality.
In a democratic republic, criminal investigations simply cannot carry the political burdens we place on them. In our system, only Congress has the democratic legitimacy to judge the conduct of the sitting president, and only Congress possesses the constitutional tool—impeachment—capable of adjudicating alleged lawbreaking by a sitting president. Prosecutors—particularly ones whom no voter supported, no president appointed, and no senator confirmed—lack the legitimacy, the stature, and the legal tools to do work that only a democratic branch can do.
The Mueller investigation proved as much. For all its fanfare, that investigation changed no minds. “Russia collusion” lives on among the partisan faithful.
Past independent and special counsels pale in comparison to Special Counsel Jack Smith, who represents the denouement of this multi-decade prosecutorial experiment. Handpicked by the attorney general from outside the federal government from his post prosecuting international war criminals, Smith has launched the most consequential criminal proceeding in modern history.
In America’s nearly 250 years, no former president had been indicted; now one has been indicted twice in two separate proceedings. No presidential campaign has before unfolded with one of the major party candidates under indictment; now one of the two major candidates is facing a possible federal criminal trial on the eve of the election, and he is doing so at the hands of prosecutors who ultimately report to his former and current election opponent, the sitting president. No federal court had previously grappled with the scope of a president’s immunity to criminal prosecution; now the Supreme Court has agreed to do so on an unusually compressed timeframe in the shadow of an impending election.
These are grave issues that will fundamentally alter our republic, and the special counsel has approached them with all the sensitivity we should expect from someone holding that office—not much.
Consider his treatment of the Supreme Court, which he subjected in December to the absurd request that it grant expedited review directly from district court on the never-before-addressed issue of whether and when federal prosecutors may bring criminal charges against a former president for acts taken while in office. The Supreme Court virtually never grants review before an appellate court’s decision. And there was no basis to do so there, as the Court easily recognized—denying the Special Counsel’s demand without dissent.
But by even lodging this request, Smith pulled the Court into the political fray. He raised the partisan temperature around the case and gave his echo chamber the hook it needed to tar the Court as “shameful” for refusing to resolve summarily an extraordinarily complex and consequential constitutional question.
The arguments that Special Counsel Smith is currently advancing at the Court are equally reckless. The president is the nation’s chief executive, entrusted with exercising broad discretion to advance the national interest. He cannot discharge that function if every federal criminal statute—many of them notoriously vague and susceptible to post-hoc prosecutorial manipulation—exposes him to official sanction. The Supreme Court has accordingly held that generally applicable laws do not apply to a president’s wielding of official powers. To reach the president, statutes must do so expressly.
This is a sound and sensible rule. The Department of Justice—subordinate to the president and attentive to protecting that office—has long embraced it. The Department’s view has historically been that “statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.”
Yet as the Special Counsel sees it, any criminal statute that uses the word “person”—i.e., virtually all of them—“covers all persons, including the President.” So much for respecting Supreme Court precedent and department policy, much less the presidency.
It’s almost impossible to imagine a regular Justice Department official taking these steps. Yet federal prosecutors acting outside the institutional constraints that typically restrict their actions—operating above the law, if you will—is precisely what the Special Counsel regulation leads to.
Smith represents this misguided system’s logical endpoint: the blind pursuit of “justice” in a specific case without heeding immediate tradeoffs, long-term consequences, otherwise-applicable Justice Department rules, or any apparent sense that a narrow prosecutorial task, while important, is just one part of a much broader legal and political system.
Justice does not exist in a vacuum. Administering justice in the real world requires a more comprehensive perspective than independent prosecutors possess. It requires the broad view of a politically accountable attorney general—responsible for all federal law enforcement, answerable to the elected president and the peoples’ representatives in Congress—who is personally and directly accountable for every act the department takes. Cleaving prosecutorial power from the nation’s top prosecutor and investing it in an unsupervised special counsel has never worked and never will. This wolf came as a wolf, and it has behaved precisely as Justice Scalia predicted.
The time has come to end the experiment with independent prosecutors.
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