We should give serious thought to reforming the rules governing independent counsels.
Over at Powerline, John Hinderaker has a couple of posts about the Mueller investigation. He is concerned that the investigation is illegally leaking information regularly and that the investigation is expanding its scope without securing the requisite authority. He raises good questions.
He wonders whether there should be a special counsel appointed to investigate the leaking. And while he is at it, he discusses three other special counsels that the Trump Administration should appoint. These special counsels should (1) “look into Uranium One” and “the FBI’s apparent complicity in the cover-up of Uranium One,” (2) “collusion between the Clinton campaign and Russians” and (3) “whether the Clinton campaign and the DNC violated campaign finance laws or other statutes through their “money laundering” agreement.”
In an earlier post, I wonder why the Trump Administration does not appoint other special counsels:
It is interesting, however, that the Trump Administration has not appointed any special counsels. It could still appoint a special counsel to investigate Hillary Clinton — both the emails and the Clinton Foundation. Similarly, it could appoint one for the Democrats’ connections with Russia. It might be able to appoint one for the unmaskings. Yet, the Administration does not choose to do so. One can speculate on the reasons, but it is somewhat puzzling.
While these cases would not involve investigations of Republicans, they would involve investigations of Democratic opponents of the Trump Administration. Thus, the Trump Administration could argue that the public would not trust it to decide on the prosecution of its opponents. Therefore, a special counsel would be needed.
This use of special counsels would employ them as weapons. One “switches on” the special counsel, one’s opponents are investigated, and one does not have to take responsibility for the actions.
While it might be difficult to appoint all of these special counsels, certainly it would make sense to appoint some of them. At first glance, it might seem inexplicable that the Trump Administration does not do so. So why doesn’t the Trump Administration appoint some?
Probably the most likely explanation is that the executive branch and prosecutors do not like special counsels. The power of special counsels directly substracts from the power of the remainder of the executive branch and prosecutors. While that interest group might explain why the Trump Administration does not appoint them, it does not make the failure to appoint a sensible policy from the perspective of the President and his party. So what if the executive branch loses some authority if it promotes the goals of the President and his party?
A stronger argument is that if the executive appoints special counsels in these situations, it may feel politically pressured to appoint special counsels for itself in other situations where it does not want to do so. That makes some sense. It is harder to argue that some future potential scandal in the Trump Administration should not warrant a special counsel if so many other special counsels have been appointed.
But still I am doubtful that this justifies the Trump Administration in not appointing such special counsels. As the Mueller appointment makes clear, the Trump Administration may be forced to appoint a special counsel anyway. And by appointing these various special counsels against the Democrats, this may change the political climate so that such special counsels are seen to be more problematic.