Now it very well may be that every step on that path by Robert Mueller was completely justified legally, the same as Ken Starr’s trajectory from Whitewater to Monica Lewinsky. He’s gone from his deputy attorney general blessing a counter-intelligence investigation into Russian meddling to blessing FBI agents seizing material related to hush payments to a porn star. He’s gone from James Comey telling him he wasn’t suspected of wrongdoing to his personal lawyer being raided in the blink of an eye. And Trump brought this all on himself with his ham-fisted firing of James Comey and sundry other acts of, at the very least, spectacularly poor judgment.īut the trajectory would be maddening for any president. Now, obviously, Deputy Attorney General Rod Rosenstein, a Trump appointee, didn’t want to embarrass the president (at least not until all this started). It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.” So many years after Scalia’s opinion, it is still worth quoting Jackson at length: “In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. “With the law books filled with a great assortment of crimes,” he said, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.” The future Supreme Court justice warned against prosecutors picking a person to investigate than a crime. Scalia relied heavily on a speech from FDR’s attorney general, Robert Jackson. This is why each side celebrates when it can get such an investigation going against a sitting president of the other party-and they know it will ramify in unpredictable, but certainly harmful, ways. Olson upholding the independent counsel law in 1988, Antonin Scalia wrote,“Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.” In his famous dissent in the Supreme Court case of Morrison v. Much of the left considers the Mueller probe a resistance march with subpoena power and a cadre of extremely able prosecutors. We’ve had a year’s worth of damning headlines about what Mueller is looking into, and a significant portion of the partisan case against Trump is based on his work. As a practical matter, it’s hard to imagine any administration ever permitting such an investigation to get unloosed again.Įven if Trump is fully vindicated, the probe has exacted a significant price in time, money and political capital. Instead, we should be thinking of whether this really is the best way to hold presidents accountable in the future. In response to Trump’s blustery attacks on Mueller, a bipartisan group of lawmakers is calling for legal protections against the removal of the special counsel that would be an ill-advised step back toward the independent counsel statute. It’s too early to render a verdict on Mueller’s work, not knowing the underlying facts, but he certainly appears to have become a kind of free-floating legal ombudsman. What resulted were endless politically fraught investigations that often exhibited a zeal disproportionate to the alleged crime. The law put investigations on a hair trigger and carved out independent counsels, executive branch officials, from control of the chief executive in a constitutionally impermissible way. After the Starr investigation in 1990s, there was a consensus that we weren’t doing that again, certainly not through the independent-counsel statute, which was allowed to lapse.
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