February 22, 2021


How Merrick Garland Can Fix DOJ's Special Counsel Problem (Neil Kinopf, February 22, 2021, Washington Monthly)

The independent counsel experiment failed because of the way the position was structured. In particular, the independent counsel was an independent contractor, hired to pursue a single matter, unconnected to the work of the Justice Department generally or to the work of any other independent counsel specifically. Is it any wonder that such a figure would pursue the object of their inquiry relentlessly?

No other prosecutor in the federal government has such a single-minded focus. In addition to this narrow targeting, the independent counsel has no other official priorities. That's important because, generally, prosecutor's zeal can be tempered by limited resources. Ordinary departmental prosecutions must decide whether to spend funds on one prosecution that will then be unavailable for other probes. They have to decide whether to spend time pursuing a given prosecution and, consequently, whether to divert time from others. Moreover, they have to consider whether pursuing a specific legal argument that might be helpful in securing a conviction in this case will undermine the interests of prosecutors in other cases. Or whether relentlessly pursuing a particular prosecution will make the department look overzealous and so harm the image of the department and its prosecutors in other cases. None of these institutional influences was brought to bear to temper the zeal of independent counsels, which almost inevitably led to Ken Starr's turn as Captain Ahab.

The path to reform, then, seems clear. The department should institutionalize the independent counsel approach. Instead of unleashing an unaccountable independent contractor (whether called an independent counsel or a special counsel), the department should establish a new section within the Criminal Division called the Rule of Law Section. The attorney general should appoint to head the section someone of unimpeachable integrity, respected by figures across the political aisle, with a lengthy record as a career prosecutor. The head of this new section would be independent from the attorney general's immediate supervision and control in the manner of the independent counsel (with this independence confirmed by a provision establishing that the section head could be removed only for cause). The section would have a permanent staff of career (that is, civil service) investigators and prosecutors. The section would be funded within the overall Department of Justice budget and its operations would be subject to DOJ regulations and the guidelines found in the U.S. Attorneys' Manual.

While the entirety of President Trump's term demonstrated the need for such an institution, the final days really clinch the case. A bipartisan supermajority of the Senate concluded, in the words of Senate Minority Leader Mitch McConnell, that President Trump was "morally and practically responsible for" provoking the Capitol insurrection on January 6. Indeed, McConnell was at pains to emphasize that Trump has not gotten away with anything "yet" because, as a private citizen, he remains subject to criminal prosecution. But this puts the Justice Department in an exceedingly difficult spot: How can the Biden Administration credibly investigate and, if appropriate, prosecute the former president?

To embark on such an investigation is to establish an uncomfortable precedent. No administration has ever conducted a criminal investigation of its predecessor. Once such a precedent is established, it opens a road that is frequently traveled in dysfunctional republics and autocracies. A Rule of Law Section, structured as I have outlined, provides the best resolution to this problem. The best way to maintain public confidence in an investigation of a predecessor administration is to vest the authority to initiate and conduct the matter in a section of the Justice Department that has independence and integrity built into its very structure.

The Republic still depends on not electing a president who is corrupt.  We're pretty good at it.  You don't blow up the place because we got one so very wrong. 

Posted by at February 22, 2021 12:00 AM