End the use of special counsels

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On Tuesday, when the special counsel Robert Hur testified before Congress, it was high presidential-year political theater. This is just the latest example of the inversion of the aims of the special counsel office.

A special counsel is supposed to ensure that the Justice Department can credibly conduct sensitive investigations that are, and that appear to be, fair and apolitical. Yet special counsels (and their precursors) have for decades failed to achieve this goal, a failure that has now reached a peak with two special counsels having an extraordinary impact on a presidential election.

It is time to kill the special counsel institution.

Special counsels have had different labels over the years. They were first institutionalized when a post-Watergate statute created what came to be called an “independent counsel” appointed by a federal court upon application of the attorney general and removable by the attorney general or Congress only in extreme cases. This was the statute under which Lawrence Walsh investigated the Iran-contra scandal and Kenneth Starr investigated Whitewater and President Bill Clinton’s affair with Monica Lewinsky.

Both men, in calmer political times than today, drew sharp partisan attacks because of the political stakes and in response to their allegedly norm-breaking behavior. Their principal decisions were perceived by different parts of the country to be wildly unfair for (in the case of Walsh) giving credence to unproven facts and allegations against people not charged, or for (in the case of Starr) including salacious and politically damaging but legally irrelevant details in a referral to Congress that laid out grounds for Clinton’s possible impeachment.

Neither party shed a tear when the independent counsel statute lapsed in 1999. One consensus point at the time was that prosecutorial independence from the attorney general did nothing to arrest the perceived partisanship of the investigation but often did lead to over-investigation, undue commentary about targets and other instances of prosecutorial zeal. The supposed virtue of prosecutorial independence was viewed as a debilitating lack of political accountability.

The main aim of the 1999 regulations that govern special counsels today was to center accountability for sensitive investigations more firmly with the attorney general. The regulations gave the attorney general power to reverse a special counsel decision “so inappropriate or unwarranted under established departmental practices that it should not be pursued” and contemplated special counsel explanations of prosecutorial or declination decisions in a confidential report that the attorney general had discretion to disclose if in the “public interest.”

As Attorney General Janet Reno testified a few months before her department issued the regulations, centralizing accountability in the attorney general for high-profile decisions “goes to the very heart of our constitutional scheme” and is vital so that the blame for prosecutorial decisions can be assigned to someone who can be punished: the attorney general.

But the regulations have failed to accomplish this goal. They deny the attorney general “day-to-day supervision” of a special counsel. And attorneys general tend not to want the ultimate responsibility that Reno envisioned because it puts them more centrally in political cross hairs, which is contrary to the department’s ethos to appear apolitical. Checking special counsels’ excesses or failing to publish their reports invariably seems like political meddling or cover-up.

Attorney General William Barr, for example, believed that Robert Mueller’s report on Donald Trump departed from the department’s policy and legal views (part of their disagreement was about the special counsel’s need to make a “prosecution or declination decision”). But though he was not shy about taking politically controversial actions, he did not exercise his power to alter Mueller’s actions or keep the report confidential (with exceptions for redactions required by law and by continuing law enforcement interests).

Special counsels hold the real power in the relationship. This power, along with their singular focus on one matter, the extraordinary resources they are given and the special need to justify the intense investigation, lead them to make highly controversial decisions, often at the edges of propriety.

In a report after his investigation of Trump, Mueller drew justified criticism when he departed from the special counsel regulations by refusing to decide whether Trump had committed prosecutable crimes while also commenting that his report did not “exonerate” him. The special counsel John Durham, appointed by Barr to investigate the origins of the Trump-Russia inquiry, drew justified condemnation when his final report contained wide-ranging criticism of former officials beyond his remit to determine criminality.

The excesses in the Mueller and Durham reports deepened the perceived politicization of the Justice Department by different halves of the country — again, the opposite of the goal of the special counsel regulations. And then Congress churned the politics of the investigations when each party used testimonial appearances by Mueller and Durham to further its political narratives.

The same pattern with a potentially even bigger political impact is unfolding with two special counsels appointed by Garland — Jack Smith, to investigate Trump in connection with the events of Jan. 6 and classified documents found at Mar-a-Lago, and Robert Hur, to investigate Biden’s possible mishandling of classified documents. Smith and Hur have both made controversial decisions that, once again, different halves of the country believe, with some basis, violate department norms.

Smith has sought to fast-track Trump’s trial related to the events of Jan. 6 in ways that Trump’s lawyers and others view as having a purpose of affecting the presidential election in violation of Justice Department rules.

Hur’s final report concluded that Biden did not commit a crime, but it made pejorative comments about uncharged conduct and the president’s “poor memory” and “diminished faculties” that the president’s attorneys, among many others, said “violate Department of Justice policy and practice.”

Perhaps public confidence in these investigations would have been no different, or perhaps worse, if the department through normal channels, and under the direct supervision of Garland, had handled them.

But we must consider the view that Garland most likely would have taken a more temperate approach to both matters. Political accountability in this context helps to ensure that a wide range of interests and values are considered. If Garland were fully and transparently in charge, he may have been less likely to have publicly justified Biden’s non-culpability in the harsh, unflattering terms that Hur used. And he may have been less likely to have rushed a trial of Trump that so clearly appears to help his boss, Biden, politically.

Law enforcement against current and former senior public officials should not be removed from politics in this sense. Political accountability and political judgment, as Janet Reno realized, are crucial to the vindication of the rule of law, and the Justice Department’s integrity, in high-profile investigations.

Reno’s proposition is about to be further tested under great pressure. The Supreme Court has delayed Trump’s trial for the events of Jan. 6 until it decides his claim to presidential immunity. If the court denies that claim, as most commentators predict, Smith can proceed to trial, perhaps even in the fall, in the heat of the presidential campaign.

Should the Biden Justice Department subject Biden’s opponent in the presidential race to a lengthy and damning trial just before the election?

Some will argue yes, on the ground that the allegations against Trump go to the heart of American democracy and should be resolved in due course regardless of the political implications.

Others will argue no, on the ground that it is an irreversible catastrophe for American democracy, as well as the Justice Department, for one presidential administration to use criminal law to attack the president’s opponent in a campaign. That’s especially true since the president’s central campaign theme (Trump’s threat to democracy) will dovetail with, and find everyday support, in Smith’s courtroom presentation.

Whether to allow Trump’s trial to proceed during the campaign, should the Supreme Court deny Trump’s immunity, is a decision with grave, crosscutting, long-term but hard-to-fathom consequences for the election, for the norm of prosecutorial noninterference in elections, for our broader politics, for the possibility of evenhanded justice and for the reputation of the Justice Department.

This monumental decision turns in part on the proper application of the Justice Department norm about avoiding prosecutorial interference in elections. The department’s inspector general has described this norm as “not written or described in any Department policy or regulation” and has indicated that its contours are uncertain. But the special counsel’s lawyers recently claimed, in the classified documents case, that the norm did not apply to the selection of a trial date in the shadow of the election.

The decision about the proper interpretation of this obscure rule, and especially its application to a presidential election, can and should be made openly and with express responsibility by Garland, the person nominated by the president and confirmed by the Senate, and not by Smith, an attorney who lacks democratic pedigree. On this call, Garland should not hide behind his special counsel. He needs to own it, one way or the other.

Jack Goldsmith is a law professor at Harvard, a nonresident senior fellow at the American Enterprise Institute and a former assistant attorney general in the George W. Bush administration. He is a co-author of “After Trump: Reconstructing the Presidency.” This article originally appeared in the New York Times.