In the 15 years I spent as a prosecutor in the U.S. Department of Justice, the organization was responsible for the investigation and prosecution of federal criminal offenses. The FBI, a top-notch investigation organization, reported to attorneys in the department of Justice or U.S. Attorneys, who made the final decision about whom to indict and when, regardless of comments from members of Congress or the media.
In the summer of 2016, unusual decisions by the FBI and the Justice Department resulted in political chaos in the government. The FBI proceeded to act on its own authority as a one-stop investigation/prosecution agency, and the Department of Justice declined to be involved in the decision regarding the possible prosecution of Hillary Clinton. As a result, what has emerged is a government that appears to be acting like a banana republic. Legislators make allegations of misconduct on the part of the executive branch or each other, and call for special counsel to investigate every allegation of political misconduct, including requests for special counsel to investigate other special counsel.
FBI Director James Comey called a special press conference on July 5, 2016, to announce that he had decided there was not enough evidence to file charges against Clinton in relation to her use of a private email server during her time as secretary of State. He said no prosecutor would bring such a case. The trouble with this statement was that he was not the prosecutor. As clever as J. Edgar Hoover was about keeping his FBI in the spotlight, he would never have been part of such a performance, and any Bureau agent who attempted to do anything similar would have been relieved of his gun and badge the same day.
Loretta Lynch, then the attorney general, should have been the official to make that decision on Clinton. Lynch was a competent federal prosecutor with a fine record, but she declined to be a part of that process. If she had made the decision it might well have affected her chances of remaining as attorney general in a Clinton administration or even future political appointments. But that should not have been a consideration. The attorney general is appointed to make tough decisions, many of which are unpopular. Sen. John Kennedy wrote of such situations in his book, Profiles in Courage, which is just as relevant now as it was when it was first published 61 years ago.
Today, we have a Justice Department that has appointed a special counsel to examine Russia’s attempts to affect the presidential election in 2016, and to determine what, if any, part the Republican candidate for president played in these efforts. The appointment of special counsel has become a basic politically correct maneuver no matter which party is in the White House. In following this process, the model for investigation and prosecution designed by the giants who drafted the Constitution are ignored. As a result, we are fast becoming a country that turns to private special counsel to investigate the most sensitive criminal matters involving public figures.
It was only a matter of time before such stop gap procedures began to fail, and we are seeing this unraveling with the Robert Mueller investigation. A senior FBI agent, Peter Strzok, has been removed from the special counsel’s staff for possible bias. Nearly every day credible factual allegations of bias on the part of officials involved in the special counsel probe continue to emerge.
Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein must put the Department of Justice back on the playing field. They have the responsibility of restoring the department’s integrity by focusing on its central mission: investigate allegations of criminal conduct, regardless of the party affiliation of the possible defendant. To start, we do not need a special counsel to handle these matters. There are many very qualified career prosecutors in US. Attorney’s Offices across the country who handle major investigations and prosecutions every day. Select a professional team from that group. Bring an end to this political free for all by letting them handle these allegations.
Peter Vaira, a former U.S. attorney, is a lawyer with Greenblatt, Pierce, Funt, Flores in Philadelphia. firstname.lastname@example.org