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Tuesday Talk*: End Special Counsels?

When originally conceived, the notion of independent counsel arose from the best of intentions, to assure the public that the investigation was fair and without influence by the reigning regime.

Special counsels have had different labels over the years. They were first institutionalized when a post-Watergate statute created what came to be called an “independent counsel” appointed by a federal court upon application of the attorney general and removable by the attorney general or Congress only in extreme cases. This was the statute under which Lawrence Walsh investigated the Iran-contra scandal and Kenneth Starr investigated Whitewater and President Bill Clinton’s affair with Monica Lewinsky.

But did the independent counsel law, which lapsed in 1999, fulfill its promise? Not so much.

Both men — in calmer political times than today — drew sharp partisan attacks because of the political stakes and in response to their allegedly norm-breaking behavior. Their principal decisions were perceived by different parts of the country to be wildly unfair for (in the case of Mr. Walsh) giving credence to unproven facts and allegations against people not charged, or for (in the case of Mr. Starr) including salacious and politically damaging but legally irrelevant details in a referral to Congress that laid out grounds for Mr. Clinton’s possible impeachment.

In crafting new special counsel regulations, the hope was to eliminate the appearance of partisanship, It hasn’t worked quite as well as hoped.

A special counsel is supposed to ensure that the Justice Department can credibly conduct sensitive investigations that are, and that appear to be, fair and apolitical. Yet special counsels (and their precursors) have for decades failed to achieve this goal — a failure that has now reached a peak with two special counsels having an extraordinary impact on a presidential election.

It is time to kill the special counsel institution.

Can any special counsel not be perceived as a political creature given that the focus of special counsel’s investigation is political by definition? Does that undermine the concept of an independent special counsel in whom the public can repose trust, or just create another unaccountable, unelected, unconfirmed, official with the power to exert vast influence over public perception and, indeed, elections?

The same pattern with a potentially even bigger political impact is unfolding with two special counsels appointed by Mr. Garland — Jack Smith, to investigate Mr. Trump in connection with the events of Jan. 6 and classified documents found at Mar-a-Lago, and Robert Hur, to investigate Mr. Biden’s possible mishandling of classified documents. Mr. Smith and Mr. Hur have both made controversial decisions that, once again, different halves of the country believe, with some basis, violate department norms.

Hur called the Democratic candidate an elderly man who can’t remember the date of his son’s death, while Smith is doing everything in his power to bring Trump to trial before the election so that voters will know he’s a felon.

Jack Goldsmith finally reaches the question that needs to be answered.

Perhaps public confidence in these investigations would have been no different, or perhaps worse, if the department through normal channels, and under the direct supervision of Mr. Garland, had handled them.

Have special counsels served their purpose of assuring the public that investigations, and whatever the special counsel decides should come after, are fair, legitimate and untainted by political bias? If not, would the public be better assured if the investigation and prosecution of  current or former public officials was conducted by the Attorney General, who can be held politically accountable for his actions and decisions?

Goldsmith gets a bit too wrapped up in the current contortions about Trump, particularly whether it belongs in the “no one is above the law” slot or “let the voters decide” slot, which largely informs most people’s views on whether Jack Smith is hero or villain. But why not blame Merrick Garland either way, given that it’s his job as attorney general to assure the American people that the government’s use of the judicial system comports with the norms and expectations of fairness, impartiality and justice, whatever that is?

*Tuesday Talk rules apply.

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