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The Latest GOP Request to Sessions is Seriously Stupid (Yes, It Involves Clinton)


Looks like the GOP is falling in line to do Trump’s bidding.

On Thursday, the House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Judiciary Committee Republicans today sent a letter to Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein asking that another special prosecutor be appointed; according to this group of Republicans, Robert Mueller’s investigative focus is too narrow, and that “the very core of our justice system demands,” that counsel be appointed to dig up dirt on Hillary Clinton, James Comey, Loretta Lynch, the entire DNC, and a laundry list of others.

This is, of course, not the first time we’ve heard cries for a special prosecutor to take up a pitchfork.  Back in June of 2016, reported that Judicial Watch, the legal watchdog group, requested a special prosecutor be appointed to look into the tarmac tête-à-tête between Bill Clinton and Loretta Lynch. Judicial Watch’s request fizzled out, and we were left with a series of visibly uncomfortable press conferences given by James Comey in which he seriously pushed the boundaries of TMI with respect to the Clinton investigation.

Now, though, since we’re busy making America great again, it might seem that it’s the perfect time to follow up on that request for independent counsel. I mean when the Boy Scouts are fair game for an anti-Hillary rally, anything’s possible. But let’s not forget – appointment of a special counsel means one big thing: that we as a country have decided that we do not and cannot trust the FBI.

Under federal law, the grounds for appointing a special counsel read as follows:

  • 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Absent a conflict of interest, there’s no need to appoint a special prosecutor. We already have tons of law-enforcement agencies in the United States, and they’re well-staffed with smart, dedicated professionals full of zeal and integrity. The idea that we can no longer rely on the FBI to investigate a former government official is laughable at best and deeply disturbing at worst. And the idea that it’s appropriate to appoint counsel now – after the FBI has already investigated and made a finding of no criminal action with regard at least to Clinton – demonstrates a lack of confidence in law enforcement that transcends political points of view.

“Conflicts of interest” is a legal term of art; it does not refer to the idea that a person may have an opinion – even a negative opinion – about the subject of an investigation. Rather, conflicts of interest exist when a person is duty-bound to two opposing forces. So, by way of utterly perfect example, when the attorney general both reports to the president and must investigate that same president, a conflict exists. But there is no such conflict with respect to former officials – even former presidents. The FBI does not report to the Clintons; it owes them no duty of loyalty. It only owes loyalty to the American people, to conduct just and thorough investigations. Chairman Goodlatte’s letter makes one clear point: the GOP doesn’t trust the FBI to do that.

In his letter, Goodlatte complains about the, “unbalanced, uncertain, and seemingly unlimited focus of the special counsel’s investigation,” into President Trump’s ties with Russia. This unfairness, he argues, “has led many of our constituents to see a dual standard of justice.” But such whining reveals the lack of understanding Goodlatte and his buddies have about the prosecutorial process generally. An investigator need not endeavor to balance his investigation, such that for every peek into a person’s background he takes an equal look into that person’s political opponent. Like every law enforcement investigator, Robert Mueller’s task is to approach his inquiry fairly, openly, and without bias – including the kind of bias that would inappropriately focus the investigation to exclude relevant information.  Investigations aren’t cable news segments — there’s no requirement that we give equal airtime to both sides.

Today, Rep. Matt Gaetz (R-Fla)., told “Fox & Friends”:

“I don’t think that the crimes of the prior administration, of Hillary Clinton, the collusion with James Comey and Loretta Lynch should be forgotten just because Hillary Clinton lost the election.”

I couldn’t agree more.   I don’t think anyone’s crimes should be forgotten because anyone won or lost an election. Where Gaetz and I differ is I think that any potential lawbreaker should be subject to a system in which we abandon our trusted law enforcement agencies in hopes we might cherry-pick our way into indictments whenever we please. Clearly, he and his colleagues disagree.

Despite his propensity to broadcast his “landslide victory” to anyone within earshot, President Trump has got some serious problems accepting the meaning of his 2016 win. As president, he occupies a unique and special role in government. Like it or not, he is steering the ship, and scrutiny into his wrongdoing requires special precautions. As the 2016’s unexpected loser, Hillary Clinton has become an ordinary American citizen. Clinton, Comey, Lynch, and the rest may be accomplished and connected individuals – but they are not the president, and as of today, they’re not even executive branch employees.  If one or all of them committed a crime, go ahead and prosecute the hell out of them – but there’s no reason we need to re-invent our entire criminal justice system to do so.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos