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There Is More than One Reason for A Special Counsel

11/22/2022

The outcry against Attorney General Merrick Garland naming Jack Smith as Special Counsel to conclude the investigation of Donald Trump rests on two grounds. The Special Counsel we all vividly remember was Robert Mueller, who investigated allegations of ties between Trump's first campaign for President and Russia. We were bitterly disappointed when Mueller failed to save us from Trump and Trumpism. But the circumstances that Mueller confronted are very different from those of Smith's faces. The most significant difference is that the Department of Justice, under Trump's ultimate control, limited the scope of Mueller's investigation. In addition, because DOJ's internal regulations prohibited the indictment of a sitting President, Mueller's investigation could not focus on Trump. It had to focus on the Trump campaign.

Because one of Trump's favorite legal tricks is a delay, some pundits have expressed concern that the appointment of a Special Counsel would aid Trump by slowing the investigation. Other pundits point out that, unlike Mueller, Smith will inherit the ongoing staff of FBI agents and DOJ prosecutors that have already been assigned to the investigation. Further, these pundits point out that a Special Counsel oversees the investigation, bypassing the usual DOG hierarchy, and the investigation may move faster.

Garland's explanation for appointing a Special Counsel is that DOJ regulations called for it. Those regulations state that the Attorney General will appoint a Special Counsel when the investigation or prosecution would present a conflict of interest for the DOJ and would be in the public interest. Garland said that Trump's announcement that he was running for president and Biden's apparent intent to reelection created a conflict of interest for the DOJ. Garland could have found that the appointment of a Special Counsel was not in the public interest. But Garland felt the need to add another layer of protection to the appearance to shield the DOJ from the appearance of undue influence. The appointment of a Special Counsel may appear to reward or give special treatment to Trump. But it will not seem like a reward if Trump is convicted.

Besides Garland's stated reasons for appointing a Special Counsel, there are at least three other reasons that Democrats should understand. First, Garland's attempt to distance (the DOJ) from the appearance of undue influence is doomed to fail with Trump's supporters. But Trump's supporters account for only about 35 percent of the electorate, while about fifty percent are Democrats. The remainder, about 15 percent, are swing voters who are critical to winning elections. Garland's appointment of a Special Counsel may benefit Democrats in future elections.

Second, the January 6 investigation may involve members of Congress. The Republican Majority in the House of Representatives will grill Garland about the DOJ's investigation of Trump. The appointment of a Special Counsel will provide Garland with a layer of protection. Of course, this will not stop the Republicans from asking questions Garland cannot answer about an ongoing investigation. Nonetheless, it will provide some cover. More importantly, Smith will have protection to investigate Republican members of Congress who may have participated in the January 6 insurrection.

Third, Garland may realize that his skills as a prosecutor may be somewhat rusty. Smith, on the other hand, appears to be an efficient and tough prosecutor. Not only has Smith handled many high-profile cases, but he also has an admirable record of having obtained convictions. Further, a Special Counsel will last past Biden's first term. If Biden is not reelected, Smith will still be able to conclude the cases.

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Democrats Lost More than the House of Representatives

11/18/2022

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Kevin McCarthy; Susan Walsh/AP, FILE

We are gratified that there was no red wave in the 2022 midterm elections. But the Democrats did lose their majority in the House, although by a small number. That loss will allow Republicans to use their control of the House to investigate members of the Democratic Administration, the agencies that refused to yield to Trump, and President Biden’s son, Hunter. House Republicans have announced their plans to investigate, at least, the Attorney General, Merrick Garland, and the Secretary of Homeland Security, Alejandro Mayorkas. Also, the Republicans have said they will revisit how the Justice Department and the FBI handled the investigation of Trump. And because some House Republicans have labeled the Bidens a crime family, there is a possibility they will impeach President Biden.

Although some people might argue that if these individuals have done nothing wrong, then investigations will not matter. Investigations will add to the burden of the individuals and agencies involved. Inspector Generals or Special Prosecutors have examined each of the announced investigations and found no wrongdoing. Besides the waste of time and resources involved in these planned Republican investigations, Democrats should fight them for three other reasons. First, as many other observers have noted, Republicans want to conduct these investigations to undermine his run for reelection for President in 2024. In 2015 Republicans in the House used this tactic to weaken Secretary of State, Hillary Clinton. For more than 11 hours, Clinton faces Republican questioning about the terrorist attack on Benghazi. This hearing was Clinton’s second Congressional testimony about Benghazi; the Republicans discovered no new information.

Second, even if Republicans are unable to undermine Biden, they undoubtedly hope they can normalize Trump’s criminal activity. Even the Congressional investigation of Biden’s son (currently being investigated by the Department of Justice) will normalize the suspected wrongdoing of Trump’s family. Trump’s supporters will use the investigations to verify their claims that “all politicians are crooked, but Trump is the best of them.” Third, investigations of government agencies undermine trust in the government. And it creates doubt that anything the government says is true. Republicans will use this distrust in government to undermine the pillars on which democracy rests.

Democrats should fight the investigations by House Republicans because they threaten our democracy. Unfortunately, Democrats have decided they have nothing to fear if they ignore the game being played by Republicans. Democrats could not be more wrong.

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Election 2022

11/14/2022

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Like about 65 percent of Americans, I was relieved by the Democratic victories in the midterm elections. Various commentators are pushing their favorite explanations for what Democrats did to reverse the historical trend of Congressional members of a first-term President’s party losing their elections. Some commentators posit that Democrats were able to turn the election from focusing on economic issues like inflation to cultural issues like abortion and democracy. Other pundits’ explanations stress the low quality and extremism of the Republican candidates.

Explaining this reversal is essential. But another question is even more critical. Considering the Democrats’ accomplishments compared to the Republicans’ blunders, how could Republicans continue to be competitive against the Democrats? Republicans were implicated in an insurrection against our government, campaigned without an agenda, and promised to end Social Security and Medicare as we know it. Democrats passed milestone safety-net legislation, such as the American Rescue Plan and the Inflation Reduction Act. In addition, Democrats passed an Infrastructure Bill, a CHIPS Act, to increase U.S. semiconductor manufacturing and aid to Ukraine to boost democracy in Europe.

Republicans do not have any governing ideas. The purpose of the Republican Party has become to stop any idea that will improve the quality of life for Americans. Republicans reject addressing the problems confronting us, such as healthcare, climate change, immigration, and inflation (the lowest in the industrialized world). Their purpose is to upend the possibility of a governing majority by splitting the Democratic coalition that includes independent voters. If Republicans successfully stifle effective governance, citizens may sour on democracy and turn to authoritarianism. Of course, Republican donors are willing to fund Republicans to ensure their taxes remain low.

The Democratic victories in the midterms are gratifying. Republicans were competitive in the midterms because they were able to raise funds from ultra-rich donors. Democrats could reverse the historical trend of the President’s party losing Congressional members by returning to a 50-state campaign strategy and shunning broadcast advertising in favor of on-the-ground organizing. Democrats also strategically promoted the weakest candidates in the Republican primaries to face them in the general elections. Most importantly, the Democratic base was energized and showed up because the Supreme Court overturned Roe and democracy was on the ballot. When the Democratic base shows up, Democrats tend to win.

Nonetheless, until independents, and perhaps, some Republicans, learn over the next two years that Republicans have nothing to offer. We will face another election in which democracy is on the ballot. Unless we develop a more persuasive approach to offsetting Republican efforts to turn this country to authoritarianism, they may eventually hit a long shot.

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Saving the Union

11/3/2022

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One of the many problems President Abraham Lincoln faced in the summer of 1861 was the location of Washington, D.C.; it was surrounded by states in or sympathetic to the confederacy. To help counter this precarious position, Lincoln suspended the writ of habeas corpus. This suspension allowed military authorities to arrest and indefinitely hold suspects without indictment or judicial hearing. Lincoln ignored an order issued by Chief Justice Taney to release or try a suspect the military had arrested. Lincoln ignored Taney’s ruling. And Taney responded by calling Lincoln “lawless” and opining that “the people of the U.S. was no longer living under a government of laws.”

Lincoln’s “unlawful” action suggests that there is a path between upholding our democracy and allowing a fascist takeover. That path is the temporary suspension of some Constitutional protections, if necessary, to save our democracy. The notion that we must allow fascists to use the privileges of our democracy and permanently end those privileges is folly. It is a folly that none of the slave-owning Founding Fathers would ever abide.

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Political Violence

11/1/2022

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Police and investigators at Speaker Nancy Pelosi's San Francisco residence, where her husband, Paul Pelosi, was attacked by an intruder Credit...Jim Wilson/The New York Times

The attack on Paul Pelosi signals a step backward to the political criminality that gripped this country during the Red Summer of 1919. More than 26 race riots and at least 250 deaths occurred during Red Summer. White mobs attacked black people seeking to remove some of the boundaries imposed by Jim Crow America. Surprisingly, even with the history of violence that the U.S. has known, our leaders cannot recognize that we are facing an onslaught of this political violence. And if they realize we are facing an attack of violence, they do not seem to have any ideas about quelling it.

Many of the government responses to the violence of the Red Summer could be considered political crimes. Leaders say that the attack on Mr. Pelosi is “not who we are” and “we can’t have this in our country.” Rev. Al Sharpton called for Donald Trump, whose comments helped to ignite the violence, to retract his statements. Solving the problem of political criminality by asking the people responsible for it and benefiting from it to “stop it” is not much of a solution. The U.S. solution to political crime has not been exemplary in the past.

Nonetheless, President Biden cannot be limited to waiting until there is more bloodshed and treating the violence as though it were simply another instance of “street” crime. The perpetrators are not street criminals who can be deterred by flooding a high-crime area with more squad cars. We are under attack. Our institutions are under attack. We must expect our government to respond and protect us.

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There Is More than One Reason for A Special Counsel

Democrats Lost More than the House of Representatives

Election 2022

Saving the Union

Political Violence

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