September 28th, 2021


Justice from the Alice-in-Wonderland School of Law

Wesley Pruden

By Wesley Pruden

Published June 20, 2017

Justice from the Alice-in-Wonderland School of Law

Fair is fair, but special prosecutors work to their own fairness code, that it's important to be fairer to some than to others. Sometimes you don't have to be fair at all.

Special prosecutors study at the Lewis Carroll School of Law, tutored in Wonderland by the wise old Professor Alice, where they are taught the Washington legal principle of "verdict now, evidence later."

These railroad jobs are not necessarily the special prosecutor's fault. Hiring a special prosecutor, much like honest citizens sending off to Cheyenne for a hired gun to get rid of the crooked sheriff, is done with a very specific goal in mind. The special prosecutor is expected to nail the target, usually a president.

His reputation is tainted if he can't do the job (though he does get to keep his nice fee).

Kenneth Starr, the special prosecutor hired to bring back the scalp of Bill Clinton (if not necessarily his incriminating underwear), was not originally hired to pursue Monica Lewinsky, though that's where the pursuit led, and Mr. Starr's reputation suffered when the impeachment hit a dead end and Bubba survived yet another adventure. Mr. Starr's midlife crisis led him to change careers and he left the law and went on to preside as president over the disgrace of Baylor University and a football factory gone bad.

Sometimes a special prosecutor gets his quarry and his own reputation still suffers. There are rules, not always observed. Patrick Fitzgerald was hired to put Lewis "Scooter" Libby, the chief of staff for Vice President Dick Cheney, in the federal pokey for his imagined role in the unmasking of a CIA agent, which is for good reason a federal felony. It turned out later that Mr. Libby was not the man who identified Valerie Plame, who was actually known by one and all in certain Washington social circles as a celebrity CIA agent.

That distinction belonged to one Richard Armitage, a deputy secretary of state, and Prosecutor Fitzgerald knew it was Mr. Armitage, and proceeded against the Scooter, anyway.

By using fake evidence to intimidate Mr. Libby, the prosecutor could hope to get the evidence to bag the vice president. That's how the law sometimes works in Washington, which is no place for an old man, or an idealistic young one, either.

Robert Mueller, the former director of the FBI and the man expected to bag Donald Trump, is a man known (by other lawyers) for his honesty, probity, rectitude, ethics and lots of other good stuff you don't always see among the lawyers in a courtroom. He brings a reputation of such blinding punctilio as to put everyone else in the dark.

But he, too, is expected by the Democratic media and political establishment to bag his quarry --- those who among Trump campaign associates might have colluded in selling out the country to the Russians. If all goes well, that includes the president himself. But if Mr. Mueller falls prey to ambition (not unknown in his trade), he has already brought in from Cheyenne several talented gunfighters.

They have impeccable Democratic credentials, and with the imprimatur of several Democratic campaigns. Andrew Weissman contributed $2,000 to the Democrats in 2006 and $2,300 to Barack Obama in 2008. James Quarles contributed $3,300 to Mr. Obama in 2008; $1,500 to Sen. Charles Schumer, the leader of the Democrats in the U.S. Senate, in 2015, and $2,700 to Hillary Clinton last year. Jennie Rhee contributed $2,300 to Mr. Obama in 2008, and $2,700 to Hillary Clinton in both 2015 and 2016. Nothing illegal or unethical about any of that but it suggests romance in the air, whether requited or not. Some people might even smell collusion in the works (but we'll always have cynics among us).

Some lawyers have noticed this. Alan Dershowitz, the distinguished legal scholar at Harvard Law School, thinks this suggests at a minimum that the Mueller investigation is already "too political."

"In a partisan atmosphere like this," he told interviewers at Fox News, "you have to be so careful not to give the other side the ability to claim prejudice. And I think they have given the other side the ability to claim prejudice. This is becoming very political, when you have the Justice Department itself being on both sides, prosecuting the president, possibly, and also serving as defense witnesses for the president. This is just becoming too political on both sides."

He observed that some Republicans now want to prosecute Loretta Lynch, who was Mr. Obama's attorney general and who sometimes demonstrated odd judgment in staying on the straight and narrow.

"We have to stop criminalizing political differences," Mr. Dershowitz says. "The criminal law should be reserved for obvious violations of the criminal law that exists, not for making political points against your political enemies on both sides."

Just so. But prosecutors are not required to be fair. Just to get their man.

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JWR contributor Wesley Pruden is editor emeritus of The Washington Times.