When Rep. Jim Jordan submitted his letter to Attorney General Jeff Sessions demanding a special-counsel probe into Hillary Clinton’s alleged improprieties, one significant name was missing from the list of supporting members. Former prosecutor Rep. Trey Gowdy, now House Oversight chair, told Fox’s Bill Hemmer today that he has great respect for Jordan, both as a colleague in the House and as a former wrestling champion, joking that he needed to choose his words carefully, but said Jordan was simply wrong to demand a special counsel at all. “There is a threshold that has to be met,” Gowdy tells Hemmer, “and I don’t think it has been met”:
CNN’s David Wright clips the significant part of the transcript:
Trey Gowdy just shot down Jim Jordan's demand for another special counsel to investigate Hillary Clinton: "I don't think the threshold has been met for an appointment of special counsel" (Fox) pic.twitter.com/TQT0djcTru
— David Wright (@DavidWright_CNN) November 15, 2017
Gowdy clearly does not argue that the Cintons should not be investigated. In fact, he emphasizes that he sympathizes with Jordan’s overall desire to see that take place. When it comes to special counsel, though, Gowdy sees that as a last resort to be used only when a conflict of interest is so profound that literally none of the Department of Justice’s 94 US Attorneys can spearhead a probe. That’s not only a statutory threshold, it should really be the political threshold, for reasons I’ll get to shortly.
I argued against the appointment of a special counsel to probe Trump-Russia because, for all the chatter about collusion, no concrete offenses warranting a criminal investigation were identified. (Recall that Robert Mueller was appointed to take over a counterintelligence investigation, not to investigate specific crimes. As I’ve repeatedly contended, this was outside the regulations.) But let’s assume for argument’s sake that there were such offenses. It would then be proper to have a special counsel, because otherwise the administration would be investigating itself. If the president and/or his campaign is the subject of the investigation, then the entire Justice Department — run by presidential appointees and subordinate to the president — has a conflict of interest.
This situation does not currently obtain with respect to the Clintons. It is commonplace for the Justice Department to conduct corruption investigations involving members of the president’s opposition party (as well as members of the president’s own party who are not among the Justice Department’s executive-branch superiors). There is no structural reason to believe the Justice Department is unable to conduct a fair investigation of the Clinton Foundation. (There may be a credibility problem, which we’ll get to momentarily.)
Plus, as Andrew later points out, there may well already be an investigation into the Clinton within the DoJ. We’ve already had signs of it, he reminds readers, and we need to be patient until we know for sure that their efforts have ended:
And importantly: We do not know that the Justice Department is not already conducting a fair investigation. When the Justice Department is functioning properly, it is not speaking publicly about pending investigations, nor is it consulting with the White House about them. It may be that we haven’t heard about any investigation because there is not anything to say at the moment. It was widely reported a year ago that the FBI was looking into Clinton Foundation activities — I wrote about it, here, when it was reported that the Obama Justice Department was blocking the bureau from access to key evidence.
One can make a decent argument for the special counsel appointment of Mueller in the Russia case, since the investigation might have otherwise required the administration to investigate itself. However, special counsels have proven to be almost entirely disastrous in execution, usually wandering far afield of their original mandates and targeting people who have little involvement with the core issues involved. There is a lack of accountability, at least politically speaking, once the appointments have been made, and they sometimes go on for years with no resolution.
They are almost literally the worst possible choice, a “break glass in case of utter crisis” option, not a tit-for-tat response to another special counsel appointment. Two wrongs don’t make a right, as the old saying goes, but that’s not quite expansive enough to get this point across. In this case, though, two special counsels operating at cross purposes hold the potential for exponential disaster.
The proper forum for probing the executive branch when a lack of effort or enthusiasm exists within the DoJ is not the ad hoc appointment of another executive branch office, but Congress itself. Special counsels steal that jurisdiction away from committees such as Oversight, a point that Gowdy doesn’t make here but can’t be far away from his thoughts. It might not produce criminal trials (although theoretically it might), but those forums can settle political matters with accountability to the voters who elected Congress.
In any case, Jeff Sessions made it clear that he’s not interested in going down that road, citing the same threshold as Gowdy does here:
Sessions on Tuesday pushed back, and told Jordan that there must be a “factual basis” to appoint a special counsel.
“‘Looks like’ is not enough basis to appoint a special counsel,” Sessions said. “You can have your idea, but sometimes we have to study what the facts are and to evaluate whether it meets the standard that requires a special counsel.”
If we don’t trust Sessions on this point, perhaps we should pay attention to two former prosecutors, at least.