What Crime Would a ‘Special Prosecutor’ Prosecute?

“We know Director Comey was leading an investigation in [sic] whether the Trump campaign colluded with the Russians, a serious offense.” So inveighed Senate minority leader Chuck Schumer (D. N.Y.), according to a report by PJ Media’s Bridget Johnson. Senator Schumer added, “If there was ever a time when circumstances warranted a special prosecutor, it is now.”

No, it’s not.

Readers of these columns will recall that I am a naysayer on the constitutional chimera interchangeably called a “special prosecutor” or an “independent counsel.” I won’t rehash all the arguments yet again. Suffice it to say there is no such thing as a prosecutor who exercises prosecutorial power independent of the executive branch. Were the Trump administration to cave in to media-Democrat pressure and appoint a “special prosecutor,” that lawyer would be chosen by the Trump Justice Department and answer to the president.

As night follows day, the next line of politicized attack would be that President Trump had rigged the investigation by choosing a crony to make the scandal disappear.

Special prosecutors notoriously guarantee a number of headaches for an administration. Unlike other prosecutors' offices, they do not have to limit the resources devoted to a single case because of other enforcement needs. Their investigations inevitably metastasize far beyond the original inquiry because there is no supervisor to keep them focused on the subject matter and ensure that the investigation is completed in a reasonable time. The arrangement is a perverse assignment of a prosecutor to a single target (or set of targets) with a mandate to make a case against him – whatever case can be made, however long it takes. Because political cases have a high public profile, and the special prosecutor would inevitably be accused of a whitewash if he decides an indictment is not warranted, there is unusually great pressure to file some charge – even if it is a “process crime” (i.e., an offense, such as making false statements to investigators, that relates not to the conduct that was under investigation but to obstruction of the investigation itself).

Just as important, special prosecutors severely degrade an administration’s capacity to govern. They paralyze officials, pitting them against each other when they should be cooperating on the president’s agenda. They divert time, energy, and resources away from the conduct of official responsibilities so that the prosecutor’s investigative demands can be answered.

The only upside an administration supposedly gets in exchange for bearing these debilitating burdens is that appointing a special prosecutor signals to the public that the administration is not afraid of an “independent” investigation. But if the president is going to be accused of rigging the investigation anyway, what’s the point?

Let’s put all that aside for a moment, though. If we’re already talking about a special prosecutor, it means we have ignored what is supposed to be a rudimentary requirement: the crime.

You don’t need a prosecutor unless you first have a crime.

If the point of the exercise is to explore threats posed by Russia, that’s not a job for a prosecutor; it is a job for the president, the intelligence agencies, and Congress. We have prosecutors to prosecute crime; absent crime, there is no place for them. And special prosecutors only come into the picture when the suspects are people (generally, executive branch officials) as to whom the Justice Department has a conflict of interest. But those suspects must be suspects in a crime – not just in some untoward or sleazy form of behavior.

So what is the crime? What is the federal criminal offense that could be proved in a court of law under governing law and evidentiary rules?

“Collusion” – the word so tirelessly invoked – is not a crime. It is used pejoratively, but it is just a word to describe concerted activity. Concerted activity can be (and usually is) completely legal. Lots of unsavory activity in which people jointly participate is legal, even if we frown on it. In order to be illegal, concerted activity must rise to the level of conspiracy.

A conspiracy is an agreement to commit a crime. Not to do something indecorous or slimey; it must be something that is actually against the law, something that violates a penal statute. In the crim-law biz, the crime that conspirators agree to try to accomplish is known as “the object of the conspiracy.” If the object is not against the law, there is no conspiracy – no matter how much “collusion” there is.

So, in the ballyhooed “Russia investigation,” what is the object of the purported conspiracy? Notice that although Senator Schumer casually asserts that “a serious offense” has been committed, he does not tell us what that offense is.

That’s because there isn’t one.

Sorry to be the downer at the pep rally, but it is simply not a federal crime for a foreign country to intrude on an American election by spreading information or misleading propaganda that favors one candidate or damages another. To draw an analogy, it is shameful for the American media systematically to scald Republicans while carrying the Democrats’ water; but there is nothing illegal about it.

Historically, countries have sought to influence American elections. That’s not spoken of much these days because the “international community” tends to favor Democrats, and Democrats are happy to have the help. In the Soviet days, it was Democrats in collusion with Russia to undermine Ronald Reagan – and no one in the media seemed perturbed by it.

Meddling in other countries’ elections (usually, while sniffing about how unseemly it would be to meddle in other countries’ elections) is what major countries do. It is certainly what the United States did during the prior administration: President Obama meddled in Israeli elections, the Brexit referendum, the Italian referendum, etc. He is apparently a compulsive meddler: He kicked off his post-presidential career by stumping for Emmanuel Macron in the French election.

This sort of thing is high-stakes politics, but it is routine. That’s why foreign subterfuge was one of the Framers’ chief concerns – which explains why the Constitution, for example, requires the president to be a “natural born citizen.”

There is little doubt that a president found to have schemed with a foreign country to corrupt American election processes could be impeached. But as I explained at length in Faithless Execution, impeachment is a political process to remove power; it is not a legal process in the nature of a criminal prosecution. An impeachable offense is a breach of the public trust, not necessarily a crime prosecutable in court. There is no indication that Donald Trump schemed with Russia to corrupt the election process. If ever there were evidence that some president had done such a thing, though, you would not need a prosecutor. You would need Congress to commence impeachment hearings.

Another hurdle is worth mentioning. Have you ever noticed that there are few federal prosecutions for crimes related to elections? That’s because elections are generally the purview of the states, even when federal offices are at stake. There are exceptions – e.g., intimidation or bribery of voters, the adoption by states of voter qualification practices that arguably violate federal civil rights laws, etc. By and large, though, it is the states that conduct and regulate elections. (See, e.g., the state of New York’s extensive corpus of election law). In fact, it is often observed that we do not have a national election for president; we have 50 state elections.

There simply is not much in the way of federal criminal law applicable to alleged “meddling” in elections. Given that Russia’s meddling did not involve preventing people from exercising the franchise or tampering with the voting process, why would we need a prosecutor?

It is not a criminal offense to encourage or assist a foreign country to take actions that might influence an election. To be sure, if the actions in question were illegal, and the encouragement or assistance in question were hands-on enough to qualify as real participation in the illegality (e.g., not mere cheerleading but actual aiding and abetting), you might have a criminal conspiracy to commit those actions.

So what illegal actions arose out of Russia’s shenanigans? The only apparent one was hacking. There is no basis to believe the Trump campaign had any involvement in that. In fact, the FBI, CIA and NSA say the Russians targeted both major political parties in their “cyber operations.” Based on what the government has told us, then, there is some basis to suspect that Trump was a potential hacking target, but none to suspect that anyone in his campaign was a hacking conspirator.

Moreover, there is good reason to doubt that a prosecutor could prove the hacking case even against Russia, never mind against others.

I take it as a given that our intel agencies are correct in concluding that (a) “Russian intelligence services conducted cyber operations against targets associated with the 2016 US presidential election”; and (b) that Russia’s military intelligence service “used the Guccifer 2.0 persona and DCLeaks.com to release US victim data … publicly and in exclusives to media outlets and relayed material to WikiLeaks.” In their report, however, the intel agencies explain that they are not able to reveal publicly how they know what they say they know; doing so would compromise “sensitive sources or methods and imperil the ability to collect critical foreign intelligence in the future.”

Consequently, the hacking presents two problems for a prosecutor, problems of the kind that recur in national security cases.

First, intelligence agency conclusions are not based on the “beyond a reasonable doubt” standard of proof that applies in criminal prosecutions. Intelligence analysis is very different from law-enforcement in this regard. Intelligence deals in probabilities and relies heavily on information that would be inadmissible under courtroom rules of evidence. In addition, intelligence analysis has no presumption of innocence. If the FBI suspects that you, John Q. Citizen, have committed a crime, the Bureau’s criminal investigators know they must overcome the hurdle that the judge will tell the jury you are innocent unless they can convincingly prove otherwise. But the FBI’s intelligence agents never presume that Vladimir Putin is innocent.

Second, even if there exists proof that would satisfy the demanding “beyond a reasonable doubt” standard, such evidence may not be usable in court. Exposing it might, for example, blow a critical intelligence-collection program; or if the information was provided by a foreign intelligence service, it might have been shared with the U.S. subject to a non-disclosure agreement. Thus, even if our intelligence agencies are right that Russia is the hacker – again, I assume they are – there may not be sufficient courtroom evidence to prove that they are right.

So on the face of things, there is only one known crime (hacking), there is no evidence of participation in it by President Trump or his campaign, and it may not even be provable against the country our intelligence agencies believe committed it, much less against lesser and non-culpable players. This, undoubtedly, is why the FBI, which has been looking at this matter for over 10 months, has been investigating it as a counterintelligence matter, not a criminal matter.

It is highly unlikely that the hacking had any material impact on the election – Democrats claimed for a year-and-a-half that Mrs. Clinton’s own potentially criminal emails were not a problem; how could a comparatively few merely embarrassing emails of the more obscure John Podesta have been a problem? In any event, whatever activities people of various connections to Trump may have been “colluding” in with Russia over the years, they are either not criminal or not relevant to the election – or both.

Unquestionably, Russia’s perfidy should be aggressively investigated. There should be accountability regarding any American who participated in it (and any American official who may have exploited the amorphous Russia counterintelligence investigation as a pretext to conduct political spying on the opposition party). But these are not criminal transactions fit for courtroom prosecution; they are national security matters fit for counterintelligence and congressional inquiries.

So why, then, do Democrats want a special prosecutor? Because the appointment of one would presume the existence of the thing they have not been able to demonstrate, namely: that a crime has been committed. They would be able to argue, à la Watergate, “We already know someone in the administration belongs in jail – otherwise, why would we have this prosecutor?”

That is not the way it’s supposed to work. An investigation by a prosecutor is triggered by a good-faith belief that a prosecutable crime has been committed. Prosecutors are not supposed to be assigned in order to investigate (and investigate … and investigate …) whether there is a good faith basis to investigate. The surgeon does not start cutting until we know the patient needs surgery.

When Democrats and the media echo chamber demand the appointment of a special prosecutor, the reply should be: To prosecute what crime? “Collusion” is not an answer to that question; and if the question cannot be answered, that should be the end of the conversation.