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December 17th, 2017

Insight

Special Prosecutor or Witch Hunter?

Debra J. Saunders

By Debra J. Saunders

Published March 6, 2017

Special Prosecutor or Witch Hunter?

WASHINGTON — Democratic leaders Chuck Schumer of the Senate and Nancy Pelosi of the House on Thursday called on Attorney General Jeff Sessions to recuse himself from any investigations into possible Russian interference in the 2016 presidential election, to resign from office and to appoint a special prosecutor.

"A special prosecutor is what's called for and if the administration has nothing to hide, they won't object," Schumer argued.

While Sessions did recuse himself before the end of the day, the former Alabama senator and U.S. attorney did not resign and he did not name a special prosecutor. There isn't much Congress can do about it either, as Schumer well knows, because Congress let the law that allowed legislators to name an independent counsel lapse in 1999.

At the time, Democrats were especially anxious to slay the beast of special prosecutor. They believed independent counsel Ken Starr had overreached when he used his authority — initially to investigate the Whitewater land deal — to determine whether President Bill Clinton had lied under oath about his relationship with former White House intern Monica Lewinsky.

Then-Deputy Attorney General Eric H. Holder Jr., who would become President Barack Obama's first attorney general, spoke in favor of letting the law die. "As the old adage, adopted from Mark Twain, goes: To a man with a hammer, a lot of things look like nails that need pounding."

With a Republican in the White House, Schumer now wants to resurrect the dead. He called on Republicans to help him pass a bill to restore the law Democrats rejected when they occupied the Oval Office.

"Cognizant and wary of this history, we would work to craft a narrow authority with specific guidelines for this investigation to prevent this from becoming a political witch hunt," Schumer said. "We hope that if the administration fails in its responsibility, that Senator McConnell and Speaker Ryan will rise to theirs." He was referring to Mitch McConnell, R-Ky., the Senate majority leader, and Paul Ryan, R-Wisc., the speaker of the House.

"The threat by Schumer to write a new law," jabbed attorney Victoria Toensing, who worked in the Reagan Justice Department, "we'll write one and make it effective as soon as a Democrat's in the White House again."

President Donald Trump took to Twitter to rib Schumer. He found a photo of Schumer and Russian Leader Vladimir Putin and suggested a probe into Schumer's ties to Putin. When Politico reported that Pelosi wrongly claimed she never met Russian Ambassador Sergey Kislyak — Politico found a photo that proved the contrary — Trump called for second investigation. Of Pelosi.

In a series of tweets, Trump laid out his reason for opposing a special prosecutor. "This whole narrative is a way of saving face for Democrats losing an election that everyone thought they were supposed to win," Trump wrote. He called their efforts a "witch hunt."

To Schumer's suggestion that the Trump White House should not object to a special prosecutor if it has nothing to hide, Toensing responded, "Because it's a distraction. It costs all kinds of money. It goes on and on." Toensing should know — she observed that her law partner and husband Joe DiGenova was appointed independent counsel to investigate allegations that someone in President George H.W. Bush's administration had searched Clinton's passport files illegally. "It takes six months to set it up."

University of California, Irvine School of Law dean Erwin Chemerinsky disagreed. The frequent Trump critic wrote in an email, "To begin with, it appears Jeff Sessions committed a crime by lying to Congress. Also, there is reason to believe laws may have been violated with regard to Russian election activity and contacts with Russia by Trump representatives. The only way to have a thorough and impartial investigation is with a special prosecutor."

Others on the left disagree — including D.C. attorney Peter Zeidenberg, who worked for the special counsel who prosecuted former Vice President Dick Cheney aide Scooter Libby for perjury. "It is entirely possible that there could have been improper or inappropriate contacts between the Trump campaign and Russian intelligence without U.S. laws having being broken," Zeidenberg wrote in the Washington Post. In that case, a special prosecutor would be bound not to make public what he or she found during a thorough probe.

It also is entirely possible that there was no inappropriate collusion between Team Trump and the Russians, and that calls for law enforcement's biggest gun is nothing but Democrats "lighting their hair on fire" — to quote Speaker Ryan — to delegitimize Trump's victory.

As for Trump, he's not exactly in a strong position to complain about political opponents using the specter of the special prosecutor to make political points. During a presidential debate, Trump told Hillary Clinton, "If I win, I am going to instruct my attorney general to get a special prosecutor to look into your situation." Now he is fighting to protect his own flank.

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