When is the right time for the Attorney General to appoint a special counsel? The answer is — never, but maybe we should ask this differently. What other credible options does an AG have while investigating a corruption probe that involves the sitting president’s family, and perhaps the president himself?
Former AG William Barr says that a special counsel is the only real option, although he was careful to praise Merrick Garland’s handling of the Hunter Biden probe thus far. Recent developments, especially whistleblowers alleging politicization at lower levels of the investigation, leave Garland with little choice, Barr says:
Recent developments warrant the appointment of a special counsel to investigate Hunter Biden, former Attorney General William Barr says.
“[I]ntervening events, especially recent reports about FBI whistleblowers and the possible reach of the investigation, warrant adding the protections of special counsel status to assure that key decisions are made independently without political ‘favor,’” Barr told The Federalist. …
Even with the new statement from Barr, he complimented Attorney General Merrick Garland for at least one part of how he’s handled the Hunter Biden investigation. “AG Garland made a good decision by keeping David Weiss in office,” Barr told the Federalist on Thursday, referring to the Republican U.S. attorney in Delaware supervising the investigation. Barr went on to say, however, that the “intervening events” including the bombshell whistleblower reports and potential scope of the investigation “warrant adding the protections of special counsel status” to make sure important determinations aren’t politically motivated.
In other words, circumstances have since changed, and Barr now believes a special counsel is warranted. So the question for Garland is: Will he show the same prudence and care for our country as his predecessor and appoint a special counsel to investigate his boss’s family?
Chuck Grassley demanded answers earlier this week from Christopher Wray about the claims of these whistleblowers, presumably in the FBI. That would necessarily involve Garland and the DoJ too, even if the politicization was entirely limited to the FBI. Much of that would likely have preceded Garland’s appointment — in fact, it may have been in place for years, stretching back to the Russia-collusion catastrophe. Right now, however, that politicization is acutely infecting the Hunter probe, according to Grassley’s whistleblowers, and that’s on Garland.
My friend Andy McCarthy, who’s only slightly less cynical about special counsels than I am, thinks that this situation has no other credible choice:
To be sure, the regs give the AG leeway, in some situations, to avoid a special counsel appointment. But not in a situation like this. The idea is that an investigation may be retained within “the normal processes of the Department” if the conflict can be mitigated by recusing particular officials. When the president and his close family members are implicated, however, it is the Department of Justice, not just the AG or particular officials, that is conflicted. That’s when a special counsel is required.
Attorney General Garland should appoint a special counsel: a reputable former prosecutor who will have credibility with Republicans as well as Democrats, and who is appropriately skeptical of the institution of special counsel, and therefore won’t exploit the appointment to grandstand or unduly compromise the administration’s capacity to govern. There are such lawyers, and they would do a good job — no doubt beginning by maintaining Weiss and his staff so that the wheel needn’t be reinvented; and continuing by avoiding the Robert Mueller mistake of recruiting partisan critics of the administration to conduct the investigation. A good special counsel would avoid zealots, instead bringing in solid former prosecutors acceptable to both parties.
Garland also knows that, if the shoe were on the other foot, he would be calling on a Republican attorney general to appoint a special prosecutor for an investigation potentially implicating a Republican president — or at least such a president’s son — in criminal activity. Moreover, an outsider with rectitude would be more likely than the Justice Department to scrutinize the FBI’s behavior, which is among the most alarming aspects of this misadventure.
I agree — in principle, but perhaps even with reservations on that point. There is no getting around the fact that in the US, the Department of Justice is fully within the executive branch and, since the AG gets and keeps his job under presidential patronage, an AG can easily turn into a presidential “wingman.” That sets up an untenable conflict of interest when it comes to criminal investigations involving the president’s family and especially the president himself. It’s precisely the type of situation for which the special counsel statutes were designed.
However, even theoretically, that doesn’t work well. The special counsel would still be under the AG, which means it still answers up the chain to the president. Even if Merrick Garland appointed a special counsel, he would have at least some organizational control of its operation. Garland might not exercise it out of a sense of independence, but the authority is still in place. This is still likely the best of bad options, especially when it only relates to family members; Congress has the authority to investigate the president, but not his/her family members, and Congress can’t prosecute anyone other than federal officeholders anyway.
In practice, though, special counsels are almost always disasters. Rarely if ever do they find actionable crimes that relate directly to their mandate. In almost every case, the only prosecutions that take place involve secondary or tertiary figures and indictments for “process crimes.” They go on for years, raise expectations while spending significant amounts of money, and end up doing nothing more than generating a report while ruining the lives of tangential figures.
Robert Mueller’s special-counsel probe is a great example of this, with the only substantial prosecution based on an old investigation of Paul Manafort dropped by Loretta Lynch’s DoJ that had nothing to do with Russian collusion or the 2016 election. John Durham’s special counsel probe is still under way, of course, and perhaps could break the mold, but it’s been ongoing for nearly four years and nearly two years of that as a “special counsel.” It has produced very little except an easy lay-up conviction of Kevin Clinesmith based on what the DoJ inspector general had already found, and an embarrassing acquittal of Michael Sussman two months ago on charges of lying to investigators. Durham’s probe is still ongoing, but it’s gone on for a long while already with not a lot to show for it on the main issues of … FBI and DoJ politicization. Hmmmm.
Still, in this situation, the lousy and utterly failed option is perhaps the only real choice for any political independence at all in probing Biden Inc in a Biden administration. Just go into it with the lowest of expectations, and you won’t be disappointed in the outcome.
Earlier this week, I spoke to my friends Amy Jacobson and John Anthony about my opinions of special counsels on The Morning Answer on Salem’s Chicago affiliate, 560 WIND. We also talk about monkeypox and some other equally fun topics, so be sure to check it out and be sure to follow them on Twitter, too.