Above the Law by Matthew Whitaker

Author:Matthew Whitaker
Language: eng
Format: epub
Publisher: Regnery Publishing
Published: 2020-05-18T16:00:00+00:00

I agreed with Professor Calabresi intellectually then, but now that I have experienced firsthand the bad faith, I believe that this role could be handled by a sitting U.S. Attorney. Mark Penn, who worked as a political advisor and pollster for both Bill and Hillary Clinton (and worked for President Bill Clinton throughout the Ken Starr investigation and the subsequent impeachment of the President), has proposed numerous reforms to the Special Counsel regulation. Many of his reforms are common sense. He would amend the regulation so that “Special Counsels are hereby classified as principal officers, requiring confirmation by the Senate. Their terms will be for one year unless renewed by the Justice Department and confirmed by the Senate. If the investigation involves political campaigns or administration officials, the team will have roughly equal numbers of prosecutors from the two parties.…”17

As the independent counsel law was expiring in 1999, Griffin Bell testified about its many inherent problems before the Senate Committee on Government Affairs. He had served as President Jimmy Carter’s Attorney General in the post-Watergate era, during the law’s creation. Bell’s analysis twenty years before the Mueller investigation concluded was uncanny. Bell immediately called out the assault on due process that results when in “isolation” a prosecutor can pursue a publicly named target of an investigation:

One problem with the Special Counsel statute that probably cannot be repaired is the inherent absence of due process from the procedure itself. This is the isolation of the independent counsel from the Executive Branch and the isolation of the putative defendant from the safeguards afforded all other Federal investigatees. The inherent checks and balances the system supplies heightens the occupational hazards of a prosecutor taking in too narrow a focus, a possible loss of perspective and a single-minded pursuit of alleged suspects seeking evidence of some misconduct. This search for a crime to fit the publicly identified suspect is generally unknown or should be unknown to our criminal justice system.

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