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Donald Trump shouldn’t fire Robert Mueller, but Mueller should be the last special counsel.

The Mueller probe just took a Ken Starr turn with its lurch, via the Southern District of New York, into the Stormy Daniels affair.

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Rich Lowry

After the Starr investigation in the 1990s, there was a consensus that we weren’t doing that again, certainly not through the independent counsel statute, which lapsed. The law put investigations on a hair trigger and carved out independent counsels, executive branch officials, from control of the chief executive in a constitutionally impermissible way. Endless politically fraught investigations ensued that often exhibited a zeal disproportionate to the alleged crime.

It’s too early to render a verdict on Mueller’s work, but he certainly appears to have become a kind of free-floating legal ombudsman.

In response to Trump’s blustery attacks on Mueller, a bipartisan group of lawmakers is calling for legal protections against Mueller’s removal that would be an ill-advised step back toward the independent counsel statute. Instead, we should be thinking of whether this is the best way to hold presidents accountable in the future. As a practical matter, it’s hard to imagine any administration ever permitting such an investigation to get unloosed again.

Even if Trump is fully vindicated, the probe has exacted a significant price, and much of the left considers the Mueller probe a resistance march with subpoena power.

In his famous dissent in the Supreme Court case of Morrison v. Olson upholding the independent counsel law in 1988, Antonin Scalia wrote, “Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.”

This is why each side celebrates when it can get such an investigation going — and they know it will ramify in unpredictable, harmful ways.

Scalia quoted FDR’s attorney general, Robert Jackson, who warned against prosecutors picking a person to investigate rather than a crime, lest it become a matter of “searching the law books, or putting investigators to work, to pin some offense on him.”

Now, obviously, Deputy Attorney General Rod Rosenstein, a Trump appointee, didn’t intend to create such a dynamic (although his initial mandate to Mueller was much too broad). And Trump brought this all on himself with his ham-fisted firing of FBI Director James Comey.

But the trajectory would be maddening for any president. He’s gone from Comey telling him he wasn’t suspected of wrongdoing to his personal lawyer being raided. He’s gone from his deputy attorney general blessing a counterintelligence investigation into Russian meddling to blessing FBI agents seizing material related to hush payments to a porn star.

Now it very well may be that every step on that path by Mueller was justified legally, the same as Ken Starr’s trajectory from Whitewater to Monica Lewinsky. But the gravitational pull of such investigations is toward expansion.

By the end, the Starr investigation was a pure partisan fight for power. The same will be true of the Mueller probe, if it isn’t already. This puts the lie to the idea that such investigations can ever be truly above politics.

It’s possible to imagine a different scenario over the past year. Congress could have created an independent commission to investigate Russia. Career prosecutors could have handled the Paul Manafort investigation. The Southern District could have, on its own, taken up the Daniels matter. And if Congress didn’t act or the Trump Justice Department quashed legitimate investigations, Democrats could have used it to build their case for the midterms — and for wielding the subpoena and impeachment power.

This effort wouldn’t have been as centralized and fearsome as Mueller’s operation, but it would have been more politically accountable and open.

All this is moot now, of course, but both sides should eventually consider whether they want another Robert Mueller.

Syndicated Rich Lowry can be reached at comments.lowry@nationalreview.com.

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(5) comments

Jobaba

Perhaps the author had a hangover or a case of the lazies? The article was a piece of chocolate bar extruded in the wee hours when there was nothing left to do. Certainly a case can be made for a special prosecutor to be assigned after every election with the way the rebumplicans cheat. Mueller is exposing crime and political dirt that needs to see the light of day. America needs better leaders and the prosecutor has shown the way.

oldhomey

Mr. Lowry herein notes that " . . . Scalia quoted FDR’s attorney general, Robert Jackson, who warned against prosecutors picking a person to investigate rather than a crime . . . " As a matter of fact, this investigation was convened to investigate a crime that all of our intelligence agencies already were aware had taken place, the Russian interference with the United States' electoral process in the 2016 presidential election. So that should satisfy Mr. Lowry's parameter of the bounds of this investigation which, all agreed going in, should be allowed to follow whatever evidence turned up wherever it took investigators. Let it follow its course. The harm being done in this instance to the president is, as Mr. Lowry himself points out, being done by the president himself, not by Mueller.

new2Lax

Collusion is not a crime, while meddling is supposedly a crime. The US and the Obama Administration meddled plenty in Israel's elections, when Netanyahu was running. Donating to the opposition party is meddling and yet it seems to be okay in that situation. No crime was set as a parameter and there has been nothing related to any type of collusion. The only thing found so far was the DNC/Hillary paying the Russian operative for a Dossier that Comey himself said it was unverified and salacious. McCabe fired by the Office of Personal Responsibility and with Christopher Wray the FBI Director's recommendation as well. James Comey also fired on the recommendation of Rod Rosenstein of the DOJ and now he is in charge of investigating his own recommendation, how does that work. Peter Strzok and Lisa Page caught up in a conspiracy to try and bring down the President. This is some of the reason for another Special Counsel, you can not have Departments investigating themselves. The IG report will make it very clear why it is necessary to appoint a Special Counsel to investigate the DOJ's recommendation (Rod Rosenstein's) reason for firing Comey and of course the non vetted Russian produced operative Christopher Steels report. The IG report on the Comey's political moves with regards to the Clinton e-mail server case, will all be out soon, then all those folks must be charged accordingly. We will have months of criminal charges forth coming, so buckle up.

oldhomey

Okay, new2, I am all buckled up, awaiting the shocking news you say will soon come vis a vis McCabe, etal. We shall see, shall we not? In the meantime, is is SO reassuring to hear you tell us that collusion is not a crime. The president keeps telling us there was NO COLLUSION! You seem to be hedging your bets that, if there was indeed collusion and it is shown that Trump and his campaign worked with the Russians, it was no crime to do so in your eyes. Well, if it comes down to that, I believe the court of public opinion will come to a different sort of conclusion than yours.

kingman10

Not only the court of public opinion but the courts that enforce our election laws and finance laws and campaign laws will have very different conclusions than new2, who has no idea or legal expertise to comment on such outcomes. Lowry may not like special prosecutors, and blames Meuller for the investigation going off into the Stormy Daniels allegations. but it is my understanding that Meuller passed on that, and let the assistant AG and the FBI handle that investigation for it had nothing to do with the Russia investigation.

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