Time for a Special Prosecutor

This story was originally published on nationaljournal.com on May 16, 2017

Al­most as soon as the votes were coun­ted in Novem­ber, some Demo­crats began clam­or­ing for the ap­point­ment of a spe­cial pro­sec­utor to look at al­leg­a­tions of Rus­si­an in­volve­ment in the pres­id­en­tial cam­paign, either to hurt Hil­lary Clin­ton or help Don­ald Trump, or both. These calls were, in my view, way over the top. It has long been the case that when mem­bers of the op­pos­ite party scream cov­er-up, some eager politicos will start scream­ing for an in­de­pend­ent in­vest­ig­a­tion. After all, any­thing worthy of the term scan­dal de­serves its own pro­sec­utor, right?

Un­til Pres­id­ent Trump’s ab­rupt fir­ing of FBI Dir­ect­or James Comey, these calls were at best pre­ma­ture and more likely en­tirely ex­cess­ive. There had been no reas­on to be­lieve that the FBI couldn’t or shouldn’t be trus­ted to get to the bot­tom of any wrong­do­ing.

Not­with­stand­ing the far­cic­al nature of the House In­tel­li­gence Com­mit­tee (do they real­ize how ri­dicu­lous they’ve looked?), the Sen­ate In­tel­li­gence Com­mit­tee, led by Re­pub­lic­an Chair­man Richard Burr and Demo­crat­ic rank­ing mem­ber Mark Warner, demon­strated a strong com­mit­ment to get­ting to the bot­tom of the af­fair. They were act­ing in a way con­sist­ent with the kind of bi­par­tis­an­ship that once was routine on Cap­it­ol Hill.

But Comey’s fir­ing changed everything. At­tor­ney Gen­er­al Jeff Ses­sions, in clear de­fi­ance of his pre-con­firm­a­tion prom­ise to re­cuse him­self from any­thing re­lated to the 2016 cam­paign, re­com­men­ded and helped con­struct a ra­tionale for ax­ing Comey. Now there is def­in­itely reas­on to ques­tion wheth­er the FBI and the Justice De­part­ment can be trus­ted to do their job. It is pre­cisely for situ­ations like this that spe­cial pro­sec­utors have been named in the past and why must one be named now. In one single act Trump af­firmed the worst fears of his most com­mit­ted crit­ics and dashed the best hopes of es­tab­lish­ment Re­pub­lic­ans.

As di­li­gent and im­par­tial as the Sen­ate In­tel­li­gence Com­mit­tee has been, it may no longer may be enough. Its Re­pub­lic­an mem­bers are go­ing to be put un­der enorm­ous pres­sure by oth­ers in the GOP to ease up, while everything that Demo­crats on the com­mit­tee try to do will be seen by some in a par­tis­an light. But even if a spe­cial pro­sec­utor is ap­poin­ted, there is still an im­port­ant role for the Sen­ate In­tel­li­gence Com­mit­tee. A pro­sec­utor’s role is to seek justice; a con­gres­sion­al com­mit­tee’s aim is to get at the truth and air its find­ings to oth­er le­gis­lat­ors and the pub­lic.

Polit­ic­ally, the Comey fir­ing puts con­gres­sion­al Re­pub­lic­ans in an aw­ful bind. In­de­pend­ent voters, who pri­or to the scan­dal had been giv­ing Trump a job-ap­prov­al rat­ing in the mid-30s and were largely un­happy with the House-passed health care bill, will be look­ing to see if Re­pub­lic­ans can keep Trump in check. They will want to see day­light between their Con­gress mem­ber and Trump. But polls have shown that among Re­pub­lic­an voters, the pres­id­ent’s ap­prov­al rat­ings have been in the 80s, and many will take a dim view of their rep­res­ent­at­ives dis­tan­cing them­selves from the pres­id­ent. Law­makers who break from Trump face the pos­sib­il­ity that they could face a primary chal­lenger from a Trump-backed can­did­ate, or that the pres­id­ent’s loy­al­ists will simply stay home in the gen­er­al elec­tion.

Many Demo­crats who had pre­ma­turely called for a spe­cial pro­sec­utor have now moved on to im­peach­ment, again get­ting out way over their skis. It should be re­membered that pres­id­en­tial im­peach­ment pro­ceed­ings have only been com­menced by the House three times, against An­drew John­son, Richard Nix­on, and Bill Clin­ton. In each case, Con­gress was in the hands of the op­pos­i­tion party. Put­ting aside the leg­al tests for im­peach­ment, the bar for a party im­peach­ing its own pres­id­ent, par­tic­u­larly in the peri­od of in­tense par­tis­an­ship that we have today, is al­most im­possibly high. In short, it is pretty far-fetched to ima­gine a move­ment to­ward im­peach­ment get­ting any­where as long as the House re­mains in Re­pub­lic­an hands. A con­vic­tion is even more im­plaus­ible so long as the GOP has a ma­jor­ity in the Sen­ate, which is pretty likely be­cause in 2018 it is de­fend­ing only nine seats com­pared to the 25 that Demo­crats are try­ing to hold.

In short, to the con­sterna­tion of Re­pub­lic­ans, this scan­dal is not go­ing away any­time soon. The scut­tle­butt is that a fairly siz­able por­tion of the al­most 14,000 FBI spe­cial agents were very loy­al to Comey and were of­fen­ded by his fir­ing. They are un­likely to go quietly in­to the night. As the late Mark Felt, who served as the FBI’s deputy dir­ect­or, showed dur­ing the Wa­ter­gate in­vest­ig­a­tion, the FBI can leak to the press without leav­ing fin­ger­prints.

But Demo­crats who are push­ing im­peach­ment are bound to be dis­ap­poin­ted. A wave elec­tion may get them con­trol of the House, but the like­li­hood of a Re­pub­lic­an ma­jor­ity in the Sen­ate will prob­ably sty­mie con­vic­tion. Bar­ring some jaw-drop­ping rev­el­a­tion, the ma­chinery of gov­ern­ment works so slowly that Trump can be reas­on­ably con­fid­ent that he will serve a full term.