Not me, not me, but … Try to contain any legit constitutional regurgitation reflex at the sound of the phrase “special counsel” and give Sen. Lindsey Graham (R-SC) your attention. In this clip from last night’s Hannity, Graham does an expert job in stitching together recent revelations from Lisa Page and Bruce Ohr into a fabric of deceit and corruption within the Department of Justice’s Hillary Clinton and Donald Trump investigations. Graham argues that we need a deeper look into what may have been the weaponization of law enforcement against the latter and on behalf of the former (via Real Clear Politics):
GRAHAM: We need a special counsel to look at the potential crimes by the Department of Justice — the FBI — regarding the Clinton e-mail investigation and the Russian investigation against Trump early on.
The point is the Congress, me, not going to the House, we’re going to call them all before the committee. Did they try to invoke the 25th Amendment to take the president down? Did they get a warrant against an American citizen (Carter Page) using information they know was flawed? Did they tank the Clinton e-mail investigation because they were afraid if they indicted her she would lose an election they wanted her to win? You’re going to get answers to that, the best I can give them to you.
Unfortunately, time starts to run out on Graham as he makes his best point, one involving James Comey. How could the then-FBI director tell the FISA court that the Christopher Steele dossier was reliable when Ohr himself told Comey that Steele was too partisan to trust his work? And how could Comey later claim to Donald Trump that he didn’t think it was entirely reliable?
GRAHAM: It goes deeper than that. So, Bruce Ohr is telling the head of the investigation, McCabe and others, you can’t rely on this dossier because the guy who created it hates Trump. He’s got a political agenda, right? So with that knowledge, they asked for a warrant on four different occasions against Carter Page.
And here’s what McCabe said. Without the dossier, we would have never gotten a warrant. They show the — McCabe said it, but it gets worse.
After Trump wins, Comey gives them a copy of the dossier saying, I want you to know this is out there. We can verify any of it, but I just want you to know about it. It’s the same document they gave to the court under oath.
HANNITY: Wait, wait, so Comey signed off on the dossier on the warrant in October 2016.
HANNITY: Before Donald Trump was sworn in in January of 2017. Well, salacious but it’s unverified.
James Comey, you have a right to remain silent.
GRAHAM: How could that be? How could you tell the court it’s reliable and tell the president, no, we don’t know if it’s true or not?
HANNITY: Because they were setting him up from —
GRAHAM: Because they were maybe setting him up.
These are excellent points, and as Graham notes are already under review. DoJ inspector general Michael Horowitz is investigating the FBI’s actions with the FISA warrant on Carter Page, for instance, and the Senate is looking at the rest of this too. The way this information has come together in recent weeks, Graham makes a good point about the need to keep pursuing these questions.
However, does this really require a special counsel to accomplish? So far Horowitz appears to be doing a credible job, and he has the requisite authority by partnering with US Attorney John Huber to run all of this down. Huber could be ordered not to prosecute a case against other FBI and DoJ figures if Horowitz makes a criminal referral, but then again, the same could happen with a special counsel, which would operate under the same aegis — the Attorney General and the president.
The only benefit of using a special counsel is that it would give a slight patina of independence. The downsides far outweigh that, though, as our long history with roving prosecutors has repeatedly proven. All we’ll get from that is a series of process crimes with little relating to the core question of the investigation. An IG is better suited for this job in that he’s arguably less restricted on what he can report.
Better yet, let Congress tackle this one. While the theory laid out by Graham certainly suggests political corruption, it’s not clear that prosecutable crimes took place except for potential process crimes. If Congress wants to start defending its constitutional prerogatives, it has to quit passing them and their responsibilities off to the executive branch. This is as good a time as any to start.