When originally conceived, the notion of independent counsel arose from the best of intentions, to assure the public that the investigation was fair and without influence by the reigning regime.
Special counsels have had different labels over the years. They were first institutionalized when a post-Watergate statute created what came to be called an “independent counsel” appointed by a federal court upon application of the attorney general and removable by the attorney general or Congress only in extreme cases. This was the statute under which Lawrence Walsh investigated the Iran-contra scandal and Kenneth Starr investigated Whitewater and President Bill Clinton’s affair with Monica Lewinsky.
But did the independent counsel law, which lapsed in 1999, fulfill its promise? Not so much.
Both men — in calmer political times than today — drew sharp partisan attacks because of the political stakes and in response to their allegedly norm-breaking behavior. Their principal decisions were perceived by different parts of the country to be wildly unfair for (in the case of Mr. Walsh) giving credence to unproven facts and allegations against people not charged, or for (in the case of Mr. Starr) including salacious and politically damaging but legally irrelevant details in a referral to Congress that laid out grounds for Mr. Clinton’s possible impeachment.
In crafting new special counsel regulations, the hope was to eliminate the appearance of partisanship, It hasn’t worked quite as well as hoped.
A special counsel is supposed to ensure that the Justice Department can credibly conduct sensitive investigations that are, and that appear to be, fair and apolitical. Yet special counsels (and their precursors) have for decades failed to achieve this goal — a failure that has now reached a peak with two special counsels having an extraordinary impact on a presidential election.
It is time to kill the special counsel institution.
Can any special counsel not be perceived as a political creature given that the focus of special counsel’s investigation is political by definition? Does that undermine the concept of an independent special counsel in whom the public can repose trust, or just create another unaccountable, unelected, unconfirmed, official with the power to exert vast influence over public perception and, indeed, elections?
The same pattern with a potentially even bigger political impact is unfolding with two special counsels appointed by Mr. Garland — Jack Smith, to investigate Mr. Trump in connection with the events of Jan. 6 and classified documents found at Mar-a-Lago, and Robert Hur, to investigate Mr. Biden’s possible mishandling of classified documents. Mr. Smith and Mr. Hur have both made controversial decisions that, once again, different halves of the country believe, with some basis, violate department norms.
Hur called the Democratic candidate an elderly man who can’t remember the date of his son’s death, while Smith is doing everything in his power to bring Trump to trial before the election so that voters will know he’s a felon.
Jack Goldsmith finally reaches the question that needs to be answered.
Perhaps public confidence in these investigations would have been no different, or perhaps worse, if the department through normal channels, and under the direct supervision of Mr. Garland, had handled them.
Have special counsels served their purpose of assuring the public that investigations, and whatever the special counsel decides should come after, are fair, legitimate and untainted by political bias? If not, would the public be better assured if the investigation and prosecution of current or former public officials was conducted by the Attorney General, who can be held politically accountable for his actions and decisions?
Goldsmith gets a bit too wrapped up in the current contortions about Trump, particularly whether it belongs in the “no one is above the law” slot or “let the voters decide” slot, which largely informs most people’s views on whether Jack Smith is hero or villain. But why not blame Merrick Garland either way, given that it’s his job as attorney general to assure the American people that the government’s use of the judicial system comports with the norms and expectations of fairness, impartiality and justice, whatever that is?
*Tuesday Talk rules apply.
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While the special counsel rules make sense from a distance, I think Goldsmith’s argument, that they have never worked to eliminate the public perception of political partisanship makes a strong point. That said, putting it in the hands of the AG or DOJ would likely make it ever worse.
I don’t know if they is a good answer, but I bet there’s a worse answer.
In order to be certain that we find whether there’s a worse answer, we should put the same people who came up w/ the “War on Drugs” in charge of the problem. They could screw up a two car funeral procession.
Especially in light of how Hillary’s private email server investigation was handled. No special prosecutor, and no charges because the DOJ determined there was a lack of criminal intent.
Red Team vs Blue Team has interesting possibilities. Have both parties run parallel investigations. Irrespective of the party of the individual being investigated, the leaked information will be far more informative. As an added bonus, the random color choice dovetails nicely with modern politics.
In a totally corrupt system in which the voters have no impact on government decisions, and the decisions of our unaccountable rulers are steering us into a cluster of icebergs, the NYT is very very concerned about the seating arrangements on the deck.
You need to loosen that tinfoil hat. I say this out of concern for your welfare.
This is a high-quality tinfoil hat and it fits perfectly. Princeton researchers are all wearing this model; it’s the latest style. They did a study which you can find by googling “public opinion has zero impact”
It does suit you.
Swing that puppy ’round ninety degrees and it would make an excellent admiral’s bicorn. Just sayin’ . . .
Since Nixon happened, politicians decided that the President can not be trusted to investigate himself. It turns out that when the investigation hurts their own leader, the President should be trusted to investigate himself (with his own wingman, ahem).
The question isn’t whether the President can be trusted. The question is how willing is Congress to do its job and impeach the President due improper and corrupt investigations and malfeasance.
Or maybe just stop taking, storing, sharing and destroying classified documents without authorization against the law. Even a very wise savant at the top of his game like Biden, who can recite the Constitution backwards while nobody is looking, should be able to do this.
If Supreme Court appointments cannot avoid politics, I cannot see how an independent council can be better.
That horse has left the barn…
The only solution is to pick people that nobody likes.
or equal numbers from both political parties… and let them duel it out.
As you’re fond of saying, the alternative to bad isn’t necessarily better. If we’re considering investigating the President, or the President’s immediate political rival, having that investigation be overseen by a Presidential appointee is going to mean at least the appearance of political bias in the investigation, even if everyone involved is straight as an arrow–which you know they won’t be.
So, no, not a big fan of special counsels–but moving it back to being directly under DOJ would be worse yet.