No need for special prosecutor in Russia case

Trump Russia Q&A
"I leaked nothing, to nobody, and never have and never would," former Obama national security adviser Susan Rice said.

Donald Trump's first 100 days have tripped up on accusations that the Russians aided his 2016 election, administration officials have ties to Moscow, and the Kremlin holds financial influence over his family. But an independent counsel investigation would damage our constitutional system far more than producing benefits from pursuing these Russian ties.

Scandals involving Russia have rapidly enveloped the White House. Trump's first national security adviser, Lt. Gen. Michael Flynn, resigned after only a few weeks in office after lying about his conversations with the Russian ambassador during the transition. Attorney General Jeff Sessions recused himself from any probe after he admitted to limited contacts with Russian diplomats during the campaign and transition. Press reports claimed that campaign chair Paul Manafort received money from Russian-linked Ukrainian sources.

All of this followed the hacking and leaking of Hillary Clinton campaign emails by hackers likely supported - if not directly employed - by Moscow. Reactions to the hacking can border on the feverish. Sen. Mark Warner (D., Va.) said "Russia sought to hijack our democratic process" by using "propaganda on steroids."

The controversy has even swept up the Obama White House. Former national security adviser Susan Rice has admitted that she "unmasked" the identities of various Trump advisers in classified intelligence intercepts targeted at foreign officials, including Russians. Such unmasking is typically done by the intelligence-gathering agencies, not by the "consumer" of the intelligence. Leaking the names, such as Flynn's, in these classified reports to the press could constitute a criminal violation of federal law.

There may well be more revelations, and many have demanded the appointment of a special prosecutor to conduct a criminal probe. "If an investigation is not independent, nonpartisan, and most of all, transparent, there is no guarantee this administration will take the decisive and immediate actions necessary to keep our country safe," Senate Minority Leader Charles Schumer (D., N.Y.) said.

But both Republicans and Democrats should suppress the urge to appoint an independent prosecutor.

First, any shock that Russia attempted to influence the 2016 American presidential election recalls Capt. Renault's discovering gambling in Rick's Cafe. Such efforts are part of 21st-century diplomacy, statecraft, and espionage, a world away from the innocent era when Henry Stimson closed the State Department Cipher Bureau in 1929 because "Gentlemen do not read each other's mail." Every major nation greedily devours each other's email and cyber-secrets and anything else into which they can hack. Indeed, it would be surprising if our global rivals did not attempt to eavesdrop on our national leaders or attempt to influence our politics, including our elections.

Second, for all the alleged skulduggery, there is no evidence that the Russians changed even a single Clinton vote into a Trump vote. At this early stage, it is not even clear what a prosecutor would investigate. It is not a crime to talk to Russians. It is not a crime to represent Russians. Major American law firms and lobbying shops do so every day.

Third, even though WikiLeaks published a large number of embarrassing emails between Democratic officials and the Clinton campaign, it is not illegal for political campaigns to spread this information once it becomes public. Such activities amount to opposition research. The task of the "oppo" staff is to discover and disseminate, as widely as possible, information that damages a rival. Russian hackers might have violated federal law by stealing and publishing private Clinton emails, but the Trump campaign had a First Amendment right to publicize them.

Finally, the federal law providing for independent counsels of the kind that investigated Iran-contra and the Bill Clinton sex scandals no longer exists. In his celebrated dissent in Morrison v. Olson (1987), Justice Antonin Scalia explained why. The independent counsel, who could not be fired except for breaking the law, violated the Constitution's vesting of the duty to "take Care that the Laws be faithfully executed" in the president.

Freed from any public accountability, independent prosecutors pursue their quarry without regard to resources or any notions of fairness or the public interest. Frequently, Scalia wrote, an effort to undermine the Constitution's separation of powers "will come before the Court clad, so to speak, in sheep's clothing." But in the case of the independent prosecutor, he wrote, "this wolf comes as a wolf." After presidents from both political parties had suffered at the hands of the independent counsel in the 1980s and 1990s, Congress allowed the statute to expire in 1999.

In the Russia case, political leaders in Washington should just allow the regular machinery of justice to grind on.

If there were some conspiracy between the Trump campaign and the Russians, which we find hard to believe, Congress can investigate as part of its oversight powers. The FBI is investigating any possible "collusion" and "the nature of any links between individuals associated with the Trump campaign and the Russian government." One of the U.S. attorneys in our major cities can prosecute any criminal violations. If multiple prosecutions require consolidation, "Main Justice" in Washington, as it is known, can take over. So far, there is no evidence that the same career prosecutors who handle everything from garden-variety drug dealers to billion-dollar frauds on Wall Street cannot handle Russian spies and their gullible American friends.

David Marston was a U.S. attorney in Philadelphia, and recently retired from private practice. dave.marston8@gmail.com

John Yoo is a law professor at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a former Bush Justice Department official. yooj@berkeley.edu