There Is No Such Thing as an Independent Counsel

Throughout the Obama years, your humble correspondent was a naysayer on the periodic calls for an “independent counsel” (a/k/a “special prosecutor”) to investigate this or that administration scandal. (See, e.g., here, here and here.) That is because there is no such thing in our constitutional system.

That has not changed just because we now have a Republican administration, meaning the media-Democrat complex finds itself demanding -- rather than resisting -- the appointment of an independent counsel.

Washington makes knee-jerk calls for independent counsels and special prosecutors because few pols and commentators seem to understand what these terms mean -- and, of course, for reasons of both integrity and self-interest, they want to be perceived as desirous of an independent investigation that will get to the truth of whatever public controversy is involved.

To this list of the ill-informed we can now add comedian-turned-talk-show-host Bill Maher and, sadly, Congressman Darrell Issa. Mr. Maher’s savant schtick notwithstanding, it is unsurprising that he does not grasp the legal concepts involved. There isn’t much excuse, though, for Rep. Issa, a longtime House Judiciary Committee fixture. Recently interviewed by Maher about alleged connections between the Putin regime and the Trump campaign, Issa urged resort to “the special prosecutor statute and office.” Assuming he was referring to the independent counsel statute, it lapsed (along with the office created thereunder) some eighteen years ago -- Democrats having found it less to their liking when Bill Clinton was caught in its crosshairs.

The independent counsel was replaced by the “United States Department of Justice Office of Special Counsel.” I provide the title in all its prolixity to highlight that the special counsel is not independent. The “special” office is part of the Justice Department and answers to the attorney general -- despite Issa’s confusing suggestion (to Maher) that it be invoked so the investigation can be insulated from Attorney General Jeff Sessions, whose prominent Trump campaign role is said to be a conflict of interest.

On Thursday afternoon, Sessions announced that he would recuse himself from any investigations involving the Trump campaign -- although, consistent with Justice Department practice, he did not confirm or deny that there were any such investigations, much less that there was any factual basis for a criminal probe of the Trump campaign arising out of Russian hacking operations. The announcement came as Sessions was embroiled in an overblown controversy over his confirmation hearing testimony (which I discuss here). Nevertheless, Sessions had been considering the recusal question with senior Justice officials before the controversy arose, as he had committed to do during his confirmation hearing.

Understand: Sessions’ recusal does not change our analysis. Any “special counsel” would still not be independent of the Justice Department. There is currently no basis to appoint one, and nothing from which Sessions needed to recuse himself -- I’ll have more to say about that in coming days. If ever appointed, though, such a special counsel would simply meet with whomever Sessions designates to act as AG in any manners from which Sessions is recused (presumably, the deputy AG).