If the Department of Justice won’t prosecute Hillary Clinton and her team for the spillage of top secret information through her unauthorized and unsecured home-brew e-mail system, will she get off scot-free? Rep. Ron DeSantis (R-FL) wonders why the Obama administration hasn’t acted yet, either through the DoJ or by appointing a special counsel to run the probe. DeSantis sent out a press release earlier today demanding one or the other, and asking some questions about the potential conflicts of interest developing around the case.
Normally a press release wouldn’t be of much interest, but DeSantis hits on a fundamental question about the rule of law — and whether Barack Obama has prejudged the case for political reasons. “[T]he Obama Administration’s continued public remarks prejudging the outcome of this ongoing investigation have called any pretense of impartiality into question.“ This refers to remarks made by Josh Earnest last week to reporters, suggesting that the White House hasn’t seen this investigation heading toward any indictments at all.
With that in mind, let’s cover the questions raised by DeSantis:
1. Attorney General Loretta Lynch was appointed United States Attorney in New York by President Bill Clinton in 1999. Does the Department of Justice consider this a conflict of interest in the context of a federal investigation involving President Clinton’s spouse?
Normally the question of appointments relates to political parties, but having a former First Lady run for the presidency makes for an even more complicated set of connections and priorities. That’s not enough by itself for a recusal, though any public statements of support would add to the issue. Lynch has not been known as a political player, certainly not to the extent of her predecessor Eric Holder, who has endorsed Hillary and was AG when this issue first arose.
2. President Obama’s political appointees, including yourself, are being asked to impartially execute their respective duties as Department of Justice officials that may involve an investigation into the activities of the frontrunner for the Democratic nomination for President of the United States. Does the Department of Justice consider this a conflict of interest?
3. Would the presidential campaign of an individual quality as an “extraordinary circumstance” in the context of special counsel regulations?
Shouldn’t it? After all, the DoJ considered an investigation of a sitting president an extraordinary circumstance in the 1990s, and an investigation into the leak of the identity of a CIA operative from an administration an “extraordinary circumstance” in the next administration. This not only involves a major-party candidate for the presidency, but a former Obama administration official. So why would those cases be extraordinary, but this one not?
That brings us to question 4:
4. The letter stated that the authority to appoint a special counsel has “rarely been exercised.” Aren’t the current extraordinary circumstances involving the investigation of former Secretary of State Clinton’s private email server the precise reason the special counsel option exists?
“Rarely” isn’t “never,” and there is enough precedent for the appointment. Just ask Scooter Libby. The question is whether the political will exists to relinquish control over this decision to someone outside the administration. George W. Bush faced a firestorm of public outrage over the Plame leak, which pushed him to appoint Patrick Fitzgerald, who went on a fishing expedition and nailed Libby on a tangential issue when the initial leaker was Richard Armitage. The fishing-expedition issue may be a powerful incentive for Obama and his team to avoid the appointment — and frankly for the use of special counsels to be “rare” in any case — but this set of extraordinary circumstances should make it a must in order for people to have some level of confidence in the handling of the investigation.
5. The letter stated that “any investigations related to this referral will be handled by law enforcement professionals and career attorneys.” That being said, will President Obama’s political appointees be privy to the decision to convene a grand jury, prosecute, or seek a federal indictment in this case?
“Be privy” is a pretty ambiguous term. Knowing of the decision isn’t so much of an issue as influencing the decision. If a career attorney convenes a grand jury, the DoJ will know about it, as will they know about decisions to prosecute. But the same is true for a special counsel; her or she would necessarily need the FBI for any of those actions, and the FBI answers to the Attorney General.
Under normal circumstances, a special counsel (or more commonly known as a special prosecutor) is a bad idea. There is almost no check on their actions except a judicial panel, which usually gives great leeway to the counsel. When dealing with sitting members of the administration, they tend to usurp the checks and balances provided to Congress. Hillary isn’t a member of the administration, though, but a private citizen out of Congress’ reach. That only leaves the Attorney General of an administration that has started to invest itself in a Hillary Clinton win, or a special counsel — and the latter right now looks like the lesser of two evils.