Congress Can Make Special Prosecutors Actually Responsible For Justice

December 9, 2022

28 Code of Federal Regulations § 600.1 Grounds for appointing a Special Counsel.

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The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter. (Emphasis added)

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I thought it was a good idea for you to see the actual law under which Special Counsels are appointed. The reason for such a counsel is, surprisingly, very simple and very logical: If the ordinary attorneys in the Department of Justice may be seen as partisan or if there’s a special public interest in a case, then the Attorney General is allowed to appoint a special attorney to take over the investigation and prosecution. Also important is the basic fact that the AG already had the authority to do this at any time without the statute simply by creating a compartmentalized investigatory group. The law doesn’t create any new powers!

Recently we’ve seen John Durham pursue small players in the RussiaGate conspiracy, without notable success. Moving back a couple of years, the Mueller investigation, even though it was strung out by Clintonistas, ended up without any prosecution of Trump because no damning evidence could be found. And now we have two key special prosecutors.

Image: Merrick Garland. YouTube screen grab.

The first is Jack Smith, the special counsel whom Democrat Attorney General Sauron Garland appointed to oversee the investigation of Mar-a-Lago raid materials and Trump’s January 6 conduct. Republicans clearly see Smith in a bad light. Trump’s attorney, Alina Habba, described him as a “partisan” and “not a good actor” who will politicize the inquiry.

The other special counsel is the one that Darth Garland has steadfastly refused to consider for the Hunter Biden inquiry. It is hard to imagine a case with higher public interest and more obvious conflicts of interest than that. But it remains on hold somewhere in the bowels of a nondescript building with government drones periodically shuffling paper.

And Darth Garland is not alone. AG Bilious Barr declined to appoint one when the laptop story appeared in the New York Post. It was a no-brainer. Hunter’s father was the President’s opponent in the election. The appearance of bias from holding this investigation inside the FBI was far more than a mirage. That light was an oncoming train. Failure to appoint a special counsel was functionally an act of rebellion against the President.

Both cases point out a key flaw in the Special Counsel statute. Such a counsel is appointed at the AG’s sole discretion. When AG Eric Holder was referred for prosecution for Contempt of Congress, he ignored the referral. No surprise. He’d have to prosecute himself.

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More tellingly, Holder didn’t appoint a Special Counsel because he didn’t think it was important. Not only was he allowed to appoint Special Counsels, but he was also allowed to not appoint a Counsel. This means that Congressional referrals for prosecution are reserved for witnesses who decline to participate in the Demoncrats illegitimate kangaroo courts.

Such a clearly biased system cries out for correction. And while we cannot drain the swamp in one fell swoop, a simple adjustment might make things a bit better. At the moment, it won’t affect the Hunter Biden non-investigation but, at least for Congress, it’s a step in the right direction.

Imagine if the next Congressional prosecution referral came with some attachments. That is, whether the House or Senate makes the referral, the House then suspends all other business while nominating a Special Counsel to deal with that referral. The nomination then gets passed over to the Senate for confirmation. The Senate then sets all other business aside until the SC is confirmed and becomes a compartmentalized part of the DOJ.

OMG! We’re unleashing lawyers against anyone Congress dislikes! Sort of. Actually, the “nomination and confirmation” process is likely to select a prosecutor who is not part of the establishment. He/she might find that the referral is defective by not even properly specifying a criminal act. At that point, a brief public report would be issued, the case would be closed, and everyone goes home to dinner. But let’s suppose that Congress actually alleges a criminal offense.

In that case, the SC would do what any good prosecutor does: Investigate! He and his team would review evidence. He might convene a grand jury. And there are two basic possible outcomes. If there’s a real case, prosecution would likely proceed. If not, the SC must create a report to Congress, a summary of which would necessarily be made public. The full report would come back to the referring body, and those legislators would decide its disposition.

One would argue that this might implicate the Separation of Powers in the Constitution, but I don’t think that’s likely. First, the Supreme Court’s decision in Morrison v. Olson (1988) appears to say that it would be okay. Second, as an executive branch officer, the SC would ultimately come under the president’s ultimate executive power. Thus, the SC could be fired, just like any other US Attorney. But that would create its own problems…for the President.

Firing a congressionally installed SC would be considered a grave political act, and the fallout would likely be severe. Congress would probably exact revenge on a President who did it. It’s likely that’s why Trump didn’t do it. Congress might defund pet projects. Or it might even impeach. But those are the proper political responses to a political act. Congress’s original actions are proper responses to likely criminal acts, and no AG would treat them lightly. A bit of accountability is likely to follow.

Sure would be nice.

Ted Noel MD is a retired Anesthesiologist/Intensivist who podcasts and posts on social media as DoctorTed and @vidzette. His DoctorTed podcasts are available on many podcast channels.

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