Streetwise Professor

The office of Special Counsel (like its predecessor, the Special Prosecutor) is a Constitutional monstrosity, and hence must be tightly constrained in order that it not run amok, like Frankenstein’s monster.  It must be used in only the most exigent circumstances–circumstances bordering on the existential–because the potential for misuse is so grave.

The dangers of such a position are many.

First, a Special Counsel is likely to be appointed only because deeply political considerations make ordinary prosecutorial and judicial procedures unworkable. Thus, the office is always at risk of becoming intensely politicized, and the instrument of partisan warfare.

Second, even ordinary federal prosecutorial functions are often problematic because of their great power, and the lack of accountability: these problems are even more acute for a Special Prosecutor. The power to prosecute–or even investigate–is the power to destroy: remember Ray Donavan’s lament, “where do I go to get my reputation back?” But prosecutors can–and often do–misuse this power in pursuit of personal agendas including political ambition and an overweening belief in their role as righteous defenders of public integrity (which often leads them to pursue, Javert-like, campaigns against those who offend their sense of justice). This problem is exacerbated by the lack of accountability for overreach. At times even grave misconduct results in little more than a wrist-slap, creating a huge asymmetry: overreach can greatly increase the likelihood of winning a career-advancing victory, but there is very little downside from getting called on it. (Check out how prosecutors behaved in the Ted Stevens case, and how little price they paid for their egregious misconduct.)

This problem is even more acute for a Special Counsel, for which there are virtually no ex ante or ex post accountability measures. The SC is free from any real oversight from the DOJ (like ordinary prosecutors) and runs little legal jeopardy from overreaching. Besides, it’s a temporary job, so getting fired means returning to the sinecure from which one came.

All of the recent uses of this office or its predecessor–Whitewater (something in which I was conscripted into a bit role) and Scooter Libby–give ample evidence of the risks.

Given these fundamental dangers in the office of Special Counsel, if one is to be appointed, his (or her) charge should be drawn extremely narrowly. If during his investigation of that particular matter, the SC finds evidence of other misconduct that is incapable of being addressed by the normal procedures of justice in the US, the burden should be on him to demonstrate a need to expand his authority beyond the originally authorized scope.

Indeed, to mitigate incentive problems, if a SC presents such evidence, unless the new potential offense is extremely closely related to the one in the SC’s original authorization, a new SC should be appointed. This would constrain an SC’s incentive to engage in fishing expeditions with the goal of expanding his power.  By no means should the SC have the ability to determine, by himself, what falls within the scope of his charge.

The early days of the Mueller investigation are providing ample evidence of the dangers of the SC. He was appointed to deal with a matter that is the subject of the most intense partisan controversy in recent memory. His hiring of numerous attorneys who donated to the Democrats does nothing to undercut, and indeed reinforces, fears that he may be partisan. His friendship with a principal player in the controversy who has an axe to grind–Comey–is troubling, and even more so is his refusal to recuse himself from any matter involving Comey. The unending stream of prejudicial leaks also does not speak to investigative integrity, but instead suggests a fundamental unfairness, and a belief that all’s fair in this fight.

But the (leaked!) decision to expand the investigation to matters that have no bearing whatsoever on the supposed subject of the investigation–collusion between the Trump campaign and the Russians to influence the 2016 election–is the true indicator of how perverse Mueller’s inquiry has become. Apparently anything that Trump, or a Trump associate, ever did is fair game. What, exactly, do Trump’s dealings in 2008 have to do with Russian hacking of the 2016 election, or Trump’s possible complicity therein?

Absolutely nothing. Oh, no doubt Mueller will be able to play some Six Degrees–or Ten!–From Vladimir Putin game to establish a “nexus” between Trump dealings in Florida in 2008 and the 2016. But if that’s the standard, there is effectively no limit on investigation at all. And that’s exactly the problem.

Assistant AG Ron Rosenstein did Trump–and the American people–a grave injustice with his already vague and sloppy charge to Mueller. It gave the ex-FBI head plenty of room to run. But Mueller is already going far, far beyond that.

And what’s to stop him? That’s exactly the problem:  Nothing. He is really accountable to no one, so there is nothing to stop him, short of the political equivalent of a nuclear second strike by Trump, such as firing Mueller or perhaps pardoning himself. Yes, those might permit Trump to survive, but they would be catastrophic for his presidency, and for the governing of the country until 2021.

Mueller for all the world is giving an Oscar winning performance of a SC run amok. I don’t see any evidence to reject the hypothesis that he is an agent of the establishment tasked with bringing down the establishment’s bête noire, by any means necessary. There is considerable evidence that confirms that hypothesis, the expansion of the investigation most notably.

And mark well: the fact that Mueller apparently has to expand his investigation strongly indicates that he found nothing whatsoever to support the suspicions that led to his appointment. If he was hot on the trail of Trump-Russia collusion, there would be no need to climb into the Wayback Machine to look into things that bear no relationship, or at best extremely remote relationship, to what he was supposed to be investigating.

No, it looks like Mueller’s motto is “For my friends, anything: for my enemies–the law!”

Maybe I’m wrong. But here appearances are a form of reality. Unless Mueller can show credibly, and indeed, demonstrate beyond challenge, that his actions are not driven by political animus, and a desire to purge DC of an unwelcome invader, if he does take action against Trump it will rip the country apart and inflame all of the divisions that made Trump president in the first place. The 60 plus million Americans who voted for Trump, in large part because they believed that the system was run by self-serving apparatchiks and was inimical to their concerns and interests, will believe that their darkest suspicions were confirmed.

If you think the country is divided now, wait for that. If you think the country is nearly ungovernable now, wait for that.

This represents another category error by the establishment, the elite. They think that Trump qua Trump is the problem, and that if he goes away, life can return to normal for the establishment. As I’ve written since well before the election, that’s complete, utter, bollocks: Trump is a symptom of elite failure and popular alienation caused by elite failure. Destroying Trump will not make it safe for the establishment to go out again. It will intensify the conflict–and crucially, signal that any means fair or foul is acceptable.

In their Trump obsession, and in the appointment of a Special Counsel who appears eager to do their bidding, the establishment is reenacting an infamous moment from Vietnam: they are destroying the village, supposedly to save it.