Special Counsels for Democrats: The Empty Set

In an earlier post, I discussed some of the arguments for whether a special counsel with broad jurisdiction should have been appointed to investigate the connections between Russia and the Trump Campaign.  I considered both technical matters and more political/functional arguments for the appointment.

But whatever one thinks of the Trump special counsel, one must also consider the Obama special counsels – or the lack thereof.  During the 8 years of the Obama Administration, no special counsels were appointed.  While the former President claims that he had no scandals, that does not pass the laugh test.  I can certainly think of at least two cases where special counsels should have been appointed.

First, the IRS Scandal was a serious matter, which potentially involved the manipulation of the tax agency to promote the reelection of the President.  Obviously, the Administration could not be trusted to investigate itself.  Yet, the press and the Congress – including many Republicans – said nothing about the appointment of a special counsel.  In addition to the original actions taken against the Tea Party groups, the IRS also appeared to have failed to provided evidence that was subpoenaed about the matter.

Second, the Hillary Clinton email scandal should obviously have received a special counsel.  Not only was Hillary Clinton a very high official in the Obama Administration when she took the actions, but she was also the Democratic nominee.  Clearly, the Obama Administration had a conflict.  James Comey, an FBI director, was not the person who should have been making the prosecutorial decisions.  A special counsel should have been appointed.

Yet, no special counsels were appointed.  How did this happen?  One obvious point is that the media was not engaged in a constant effort to have a special counsel appointed.  Clearly, the media has substantial power in the country and this example shows some of that power.  Another significant point is the lack of unity of the Republicans as compared to the Democrats.  The Democrats were strong defenders of the Obama Administration and did not break ranks to call for a special counsel.  Yet, many Republicans have supported the appointment of the special counsel for Trump.  Some of this may be due to the power of the media, but some of it comes from so called mavericks.

(Of course, some of this is due to the incompetence of the Trump White House.  The firing of James Comey was handled dreadfully.)

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.

But that is hardly new.  The political parties have long recognized that the appointment of an independent or special counsel can be used as a means of attacking and weakening the other political party.

Reader Discussion

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on August 13, 2017 at 10:04:29 am

Spineless republicans don't have what it takes to fight their counterparts? Why is Mr. Trump the president? A simple answer to that, is that middle and rural America got tired of no representation in DC. Yes they are trying to impeach him, because they know he would get elected again. I can see him taking on bigger problems right now. Surely HRC, the foundation, the communist inner circle of the previous dictatorship will be unmasked to the public. Nice to know that Axelrod, Valerie come from families with ties to socialist and communist organizations, never the less the black boy himself? But they all will have their day in court: Mathew 19;23/24.

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Abelardo Aguilu
on August 13, 2017 at 10:25:12 am

MR: "First, the IRS Scandal was a serious matter, which potentially involved the manipulation of the tax agency to promote the reelection of the President. "

You're obviously not a tax guy, Mike. ln a conflict between the Code and Regs, the Code controls. Section 501(c)(4)(A) provides that "[c]ivic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes" are entitled to tax-advantaged status. Partisan political groups don't really fall within its ambit, and if Lois Lerner had merely said that, she would have been in the clear.

The only colorably political aspect of this faux-scandal is the fact that the vast majority of applicants were conservative groups.

WRT the Clinton e-mail scandal, l heartily concur. The most interesting aspects of the scandal were "follow the money" specials: the apparent disguised $17.5M bribe by George Soros through Laureate University, the alleged looting of the Haitian relief fund by Clinton Foundation contributors, and possible influence-peddling using exorbitant speaking fees as an apparent conduit. But it's not like Jeff Sessions couldn't (and shouldn't) name one tomorrow.

The manner in which James Comey was fired practically begs for a finding of obstruction of justice, which was the first count in both the Nixon and Clinton impeachments. As the Administration couldn't credibly investigate itself, a special counsel was certainly called for. And as was the case with the Clinton e-mail scandal, the cover-up is often a road map to the underlying crime. With Trump, it appears to be money-laundering, and NY authorities also have jurisdiction over the suspected matter. Having done this sort of work, l know that it is both painstaking and labor-intensive work. There is almost certainly a "there" there.

While special counsels can be used as a political weapon, they are not used as often as they ought to be.

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on August 13, 2017 at 12:00:02 pm

"While special counsels can be used as a political weapon, they are not used as often as they ought to be."

Yep! One wonders if a greater usage of SC's would actually reduce the perception that SC's are not much more than a political weapon deployed by one party (typically the party in possession of testicular fortitude) against the other.

BTW: Andy McCarthy has written some interesting pieces on the whole Mueller "thingy"

I nominate LawDog for the next open SC - Ha!

Now off to something equally as humbling as being pursued by an SC - Golf!!!

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on August 13, 2017 at 22:44:07 pm

Despite what LawDog says and what the piece above implies, the groups targeted by Lerner, et al., were not only "Tea Party" groups. Rather, they included limited-government groups such as the Compact for America Education Foundation. I am on the board of that group, the purpose of which is to promote an amendment convention for the purpose of proposing a specific BBA.

Our 501c3 application took well over a year at a time when analogous big-government groups' applications averaged only a few months. We have nothing to do with the Tea Party, pro or con.

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Kevin Gutzman
on August 15, 2017 at 11:26:43 am

You do mean -c4, don't you? And lMHO, every one of the political applications should have been rejected, as the statute controls. llRC, it was a RevRul that was out in left-field. Rove's people spotted the error, and the rest is history.

One of the problems is that the level of scrutiny you get too often depends on the examiner. By your own admission, yours appears to be a political advocacy group, which should not be entitled to obscure the source of your financing. The lRS had a legal right to question your bona fides. lf l had been in Lois Lerner's position, none of the political -c4s would have been approved, and the RR would have been withdrawn.

l'm just speaking as a veteran JD/MS(tax)/CPA, who became an expert in ConLaw out of necessity. Don't have a dog in that hunt.

My point is that there are some "scandals" that aren't. Even a Bush-appointed judge said there was no "there" there.

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