Nor is it clear to me that we need to appoint a special prosecutor to deal with this problem. Right now the details on this proposal are hazy at best, but unless there is some new legislation, any such prosecutor would operate inside the Department of Justice, not outside of it. The dangers of a runaway prosecution by an independent prosecutor were vividly pointed out by the late Justice Scalia in his stirring 1988 dissent in Morrison v. Olson. There is no need to revive that sorry chapter in American jurisprudence today.
And the demand for a special prosecutor raises as many questions as it answers. Who should make the appointment? Could it be anyone in the Trump Department of Justice? Attorney General Jeff Sessions seems out, given his decision to stay clear of the Russian investigation. Rosenstein seems compromised because he wrote the memo that led to the firing of Comey. Will it be necessary to come up with some novel procedure to fill the gap, knowing that there is no person on the face of the planet who has the unique blend of talents, independence, stature, and fortitude to taken on so thankless a task?
It could take months for this matter to be sorted out, and it is surely in no one’s interest to delay the investigation until the prosecutor is named and is able to fill all the positions needed to carry out the job. An appointment of this sort ought to await some clear sign that the reconstituted DOJ is utterly unequal to the task — at which point the pressure could again mount. In the meantime, anyone outside the DOJ, including committees in the House and Senate, and any independent newspaper, is entitled to mount their own investigation to see if they come up with something concrete on the supposed Trump-Russian connection.
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