You can set your watch by it: Whenever a scandal arises or intensifies in the scandal-plagued Obama administration, alarms go off calling for a “special prosecutor,” and I am constrained to respond (see, e.g., here) that this well-intentioned idea is a bad one. So it is with what even the Obama White House now concedes is the criminal investigation of Hillary Clinton.
Here at National Review, Dan McLaughlin renews the call for President Obama to appoint a “special prosecutor” to take over the criminal investigation of the former secretary of state and presumptive Democratic presidential nominee. Echoing the Transom’s Ben Domenech, he contends that Obama’s endorsement of Clinton’s candidacy, announced on Thursday, is somehow a game changer.
While I have great respect for both of these thoughtful commentators, I could not disagree more. Special prosecutors are unconstitutional if truly independent, and counterproductive if not so. They are a poor excuse for avoiding the Constitution’s remedy for corrupt public officials: impeachment and disqualification. Moreover, it is simply not true that Obama’s endorsement of Clinton meaningfully ratchets up his conflict of interest; that conflict was already profound because we have known for months that Obama is implicated in Clinton’s lawlessness.
Any Prosecutor Appointed by Obama Would Not Be Credibly Independent
To their credit, Messrs. McLaughlin and Domenech avoid the fatal error usually made by “special prosecutor” enthusiasts — the error that explains the scare quotes around the term. When commentators call for a “special prosecutor,” they usually mean an independent prosecutor — as in: independent of the executive branch. As we shall see, however, such an office would be unconstitutional, because prosecution is an executive function.
McLaughlin and Domenech concede that this is a problem but convince themselves that it can be gotten round if President Obama, in a display of great integrity, appoints a credible lawyer who, though technically subordinate to the president, would be given de facto independence to conduct a thorough, let-the-chips-fall-where-they-may investigation. It would be hard to fathom a suggestion more removed from reality.
Obama has not only presided over a Justice Department so corrupt and politicized it would make the Nixon administration blush. He is, to repeat, complicit in Mrs. Clinton’s misconduct (a point we’ll cover in a bit). It is simply preposterous to believe that, after governing lawlessly for seven and a half years, Obama would suddenly transform into a pillar of rectitude who unleashes a credible, truly independent investigation of Clinton that could cost his party the presidency while besmirching his legacy.