What’s the antidote for a special counsel that exceeds his mandate, charges peripheral figures with unrelated crimes, and hires investigators with potential conflicts of political interest? The obvious answer: appoint another special counsel to investigate the first one. Trump attorney Jay Sekulow suggested the hair-of-the-dog solution to Axios’ Mike Allen, although they also want to see Robert Mueller get to the end of his investigation too:
- The new demand was prompted by a Fox News article last evening by James Rosen and Jake Gibson: “A senior Justice Department official [Bruce Ohr] demoted last week for concealing his meetings with the men behind the anti-Trump ‘dossier’ had even closer ties to Fusion GPS, the firm responsible for the incendiary document, than have been disclosed: … The official’s wife [Nellie Ohr] worked for Fusion GPS during the 2016 election.”
- Jay Sekulow, a member of the President’s legal team, tells me: “The Department of Justice and FBI cannot ignore the multiple problems that have been created by these obvious conflicts of interests. These new revelations require the appointment of a Special Counsel to investigate.”
- Unlike some other vocal Republicans, Trump’s lawyers say they respect Mueller and trust him, and want to get to the finish line with him.
So the solution to a largely unaccountable prosecutor is to sic another largely unaccountable prosecutor on him? One can only imagine the procession of Javerts that would follow as each succeeding special counsel comes under public fire, all the while without any certainty that a Valjean exists. It might become a full-employment bureau for former US Attorneys and ex-FBI executives that could last for decades. It would certainly beat working loss prevention during the holiday season.
The idea seems curious, especially since there is no allegation of criminal activity within the special counsel’s office — only potential ethics issues and conflicts of interest. Those concerns would normally come under the jurisdiction of the Inspector General, not another prosecutor. Since Mueller’s probe exists within the Department of Justice and answers to Rod Rosenstein, the IG can open an investigation into these issues without the risks and abuses associated with special counsels. So why not just ask for an IG review, at least first, before leaping to the hair of the dog?
Hugh Hewitt called last week for a second special counsel, but not to investigate Mueller’s investigation. Rather, he argued that the recent revelations about Peter Strzok (and preumably Ohr too, although his essay preceded that revelation) demonstrated the need for an outside investigation of the Obama-era DoJ for abuses of power:
As a result, a large swath of responsible center-right observers are demanding a full review of the investigation and prosecution powers wielded by the Obama-era Justice Department and FBI. Former federal prosecutor Andrew C. McCarthy wrote in National Review on Saturday that President Trump should call for a second independent counsel to investigate abuse of the counterintelligence authorities under President Barack Obama, abuses he suggests were undertaken to protect the controversial Iran deal on nuclear weapons.
This is an excellent idea. The new special counsel could also review Strzok’s texts and, more crucially, his conduct throughout 2015 and 2016. Strzok may be completely innocent of everything except an offhand joke that the straight-laced Mueller deemed necessary to punish in a display of a “Caesar’s wife” sort of purity of purpose. But if his texts to FBI lawyer Lisa Page reveal a partisan animus toward Trump or admiration for Clinton, then the bureau and the department have a huge problem on their hands and not just with Strzok and Page. …
The Strzok report comes on the heels of the widely derided Justice Department investigation into IRS discrimination against conservative groups, including the disposition of allegations against IRS senior official Lois Lerner, and after the wildly erratic behavior of then-FBI Director James B. Comey during 2016. It also follows the vote to hold then-Attorney General Eric H. Holder Jr. in contempt of Congress — the first ever against a sitting member of the Cabinet — with 17 Democrats voting in support. Mix into this battering of the Justice Department’s and FBI’s reputations the still-murky charges and counter-charges of abuse of “unmasking” powers during the waning days of the Obama era.
That makes more sense, although it’s still a job that could better be performed initially by an Inspector General, too. That also applies to the issues surrounding the Ohrs as well. An IG report would at least give some preliminary indication if a deeper probe would be warranted, and perhaps help a later special counsel avoid pitfalls by keeping those with potential conflicts of interest out of the investigation.
But even then, all of this presupposes that Congress can’t do its job in providing oversight on the DoJ and FBI. Perhaps that’s true, but if so, that’s a bigger problem than Obama-era abuses. We seem to be defaulting to extra-constitutional remedies that create more problems than they solve, and Mueller is shaping up as a good example of the problem. Creating a daisy chain of Muellers will only make that worse.
Addendum: I doubt that Sekulow is fully serious about this idea, too. This suggestion, combined with the weak personal endorsement of Mueller, looks more like an attempt to undermine the credibility of the probe in case it develops prosecutable material against Trump or other high-ranking officials. If it does, his attorneys can claim bias and abuse of power; if not, they can say, “Even Mueller says there’s nothing there!”