“We know Director Comey was leading an investigation in [sic] whether the Trump campaign colluded with the Russians, a serious offense.” So inveighed Senate minority leader Chuck Schumer (D. N.Y.), according to a report by PJ Media’s Bridget Johnson. Senator Schumer added, “If there was ever a time when circumstances warranted a special prosecutor, it is now.”
No, it’s not.
Readers of these columns will recall that I am a naysayer on the constitutional chimera interchangeably called a “special prosecutor” or an “independent counsel.” I won’t rehash all the arguments yet again. Suffice it to say there is no such thing as a prosecutor who exercises prosecutorial power independent of the executive branch. Were the Trump administration to cave in to media-Democrat pressure and appoint a “special prosecutor,” that lawyer would be chosen by the Trump Justice Department and answer to the president.
As night follows day, the next line of politicized attack would be that President Trump had rigged the investigation by choosing a crony to make the scandal disappear.
Special prosecutors notoriously guarantee a number of headaches for an administration. Unlike other prosecutors' offices, they do not have to limit the resources devoted to a single case because of other enforcement needs. Their investigations inevitably metastasize far beyond the original inquiry because there is no supervisor to keep them focused on the subject matter and ensure that the investigation is completed in a reasonable time. The arrangement is a perverse assignment of a prosecutor to a single target (or set of targets) with a mandate to make a case against him – whatever case can be made, however long it takes. Because political cases have a high public profile, and the special prosecutor would inevitably be accused of a whitewash if he decides an indictment is not warranted, there is unusually great pressure to file some charge – even if it is a “process crime” (i.e., an offense, such as making false statements to investigators, that relates not to the conduct that was under investigation but to obstruction of the investigation itself).
Just as important, special prosecutors severely degrade an administration’s capacity to govern. They paralyze officials, pitting them against each other when they should be cooperating on the president’s agenda. They divert time, energy, and resources away from the conduct of official responsibilities so that the prosecutor’s investigative demands can be answered.
The only upside an administration supposedly gets in exchange for bearing these debilitating burdens is that appointing a special prosecutor signals to the public that the administration is not afraid of an “independent” investigation. But if the president is going to be accused of rigging the investigation anyway, what’s the point?
Let’s put all that aside for a moment, though. If we’re already talking about a special prosecutor, it means we have ignored what is supposed to be a rudimentary requirement: the crime.
You don’t need a prosecutor unless you first have a crime.
If the point of the exercise is to explore threats posed by Russia, that’s not a job for a prosecutor; it is a job for the president, the intelligence agencies, and Congress. We have prosecutors to prosecute crime; absent crime, there is no place for them. And special prosecutors only come into the picture when the suspects are people (generally, executive branch officials) as to whom the Justice Department has a conflict of interest. But those suspects must be suspects in a crime – not just in some untoward or sleazy form of behavior.
So what is the crime? What is the federal criminal offense that could be proved in a court of law under governing law and evidentiary rules?
“Collusion” – the word so tirelessly invoked – is not a crime. It is used pejoratively, but it is just a word to describe concerted activity. Concerted activity can be (and usually is) completely legal. Lots of unsavory activity in which people jointly participate is legal, even if we frown on it. In order to be illegal, concerted activity must rise to the level of conspiracy.
A conspiracy is an agreement to commit a crime. Not to do something indecorous or slimey; it must be something that is actually against the law, something that violates a penal statute. In the crim-law biz, the crime that conspirators agree to try to accomplish is known as “the object of the conspiracy.” If the object is not against the law, there is no conspiracy – no matter how much “collusion” there is.
So, in the ballyhooed “Russia investigation,” what is the object of the purported conspiracy? Notice that although Senator Schumer casually asserts that “a serious offense” has been committed, he does not tell us what that offense is.