Jack Smith, tasked by Attorney General Merrick Garland in November with determining whether former president Donald Trump should be charged over the Jan. 6, 2021, riot or for mishandling documents, is “just as tenacious in his pursuit to get criminal charges dropped for the innocent as he is to win convictions against the guilty,” Reuters reported, citing his former colleagues. Robert K. Hur, the special counsel investigating President Biden’s handling of documents is “a fair-minded, nonpartisan seeker of justice,” a lawyer told The Post.
On the one hand, it’s a good thing these prosecutors — who report to the attorney general but enjoy extra independence under Justice Department custom and guidelines — are apparently such sterling moral specimens. On the other, it should give us pause. Federalist 51 observed that “if angels were to govern men, neither external nor internal controls on government would be necessary.” The need to depict special counsels as legal divinities untainted by earthly political bias reflects the uncomfortable fact of their insulation from political accountability.
Yet our politics increasingly revolves around their decisions, past and future. Smith and Hur could upend the 2024 presidential race with investigations of active candidates. Mueller’s investigation, which weakened the Trump administration but found no evidence of illegal collusion with Russia, badly undermined Republican voters’ trust in the Justice Department.
Meanwhile, Durham is now in Democrats’ crosshairs after a New York Times article alleged partisan influence and “ethical disputes” in his operation. Durham won a guilty plea against a government lawyer for altering an email related to the surveillance of a Trump adviser, but the two cases he brought to trial, both for lying to the FBI, ended in acquittals. Chairman Richard J. Durbin (D-Ill.) said the Senate Judiciary Committee would investigate Durham’s probe, and two House Democrats called for the Justice Department’s inspector general, Michael Horowitz, to do the same.
Horowitz, in case you were wondering, is “completely fair, down the middle,” a former colleague told Reuters, so surely his investigation of Durham’s investigation of the FBI’s investigation will be the one that finally clears things up.
Okay, you get the point: Even when federal investigators have a reputation for independence and neutrality, their involvement in politics is as likely to distort the electoral process as to bring closure and consensus.
The Mueller-Durham saga illustrates this pattern. It has become clear that there was no unlawful collusion between the Trump campaign and Russia, and that the investigation and narrative around it were influenced by a discredited opposition-research document commissioned by Hillary Clinton’s campaign. Yet Trump was so personally appalling to some officials that they figured a foreign power must have fueled his rise. The legal system, and Mueller personally, became the remedy for populist political forces.
In September 2020, Barr warned in a speech, no doubt with the Mueller inquiry in mind: “Individual prosecutors can sometimes become headhunters, consumed with taking down their target.” Yet the Times report suggests Barr and Durham themselves became similarly consumed as they conducted a counterinvestigation. On the evidence of Durham’s 0-for-2 record at trial, he was too quick to see criminality — rather than political hyperbole and opportunism — at the root of the Russia scandal.
The Smith and Hur probes highlight a different weakness of the special counsel regime. The reliance on special counsels goes hand in hand with the incantation that “no one is above the law.” The morally and politically untainted special counsel, the fiction goes, will cast righteous judgment on powerful lawbreakers, without fear or favor.
The simultaneous investigations of Biden and Trump for possessing classified documents — Trump might also have obstructed their return — strain this premise to the breaking point. Voters will judge the two probes in parallel, and the political implications are immense. As Commentary magazine editor John Podhoretz pointed out, an indictment of Trump but not Biden could trigger Biden’s impeachment by the Republican House and force Democratic senators to defend Biden’s mishandling of documents in an impeachment trial. That would overwhelm all other issues in the 2024 race.
There is no way to fully sever the criminal process, when it is aimed at a president or candidate, from the political process. Special counsels are an effort to do this, but they occupy an institutional no-man’s land — as both part of the executive branch and ostensibly removed from it — that blurs lines of responsibility.
That is not to say there’s an easy constitutional formula for rooting out wrongdoing by a nation’s chief executive. As Federalist 51 warned, a “great difficulty” lies in creating a government that can both control its population and “control itself.”
But the best tool we have to control the executive is Congress, which can subpoena, investigate and impeach. Unlike special counsels, members of Congress are seldom hailed as incorruptible and pure, and Americans recognize them as political actors. But perhaps it is also healthy to hold some skepticism toward public officials who haven’t been elected, yet possess the power to make and unmake presidencies.
The temptation as party competition intensifies is to generate more executive-branch investigations. The challenge will be to unwind the special-counsel surge so the law is less likely to distort politics and politics less likely to distort the law.