Election 2016

'Crooked Hillary' Is No Reason to Restore the Independent Counsel Statute

Some politicians are dishonest. But it's far healthier for democracy if the voters get to sort that out in elections.


Mike Stotts/Splash News/Newscom

If there is a President-elect Hillary Clinton, she may find herself missing Justice Scalia.

When Scalia died in February, Clinton issued a statement: "I did not hold Justice Scalia's views, but he was a dedicated public servant who brought energy and passion to the bench."

Clinton's sweeping disavowal of Scalia's "views" might have been politically convenient for a candidate running in a Democratic primary against Senator Sanders of Vermont. But the way things seem to be headed, it won't be long before President-elect Clinton starts browsing Scalia's dissent in the 1988 case Morrison v. Olson, and asking herself where on earth can be found a lawyer with the principled, prophetic foresight and communication skill of a Scalia.

Oh, there's no lack of astute legal talent on Clinton's political side, from Bernard Nussbaum, who as White House counsel advised against the appointment of an independent counsel back in the first Clinton administration, to Nicole Seligman and Karen Dunn. All brilliant lawyers and wonderful people. But what Scalia had was the credibility of having written this, in the Morrison v. Olson dissent:

Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. 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.

Substitute "her" for "his" and "him," and it's a remarkably prescient passage. Scalia had the credibility of having written that back in 1988, when Donald Trump's description of "Crooked Hillary" was not a household term, when no one had heard of Monica Lewinsky or Paula Jones or a private email server or Wikileaks or the Clinton Foundation, and when the administration being hounded by a special prosecutor was that of Ronald Reagan.

Already, influential conservatives, anticipating a Clinton presidency, are calling for the restoration of the independent counsel statute that Congress wisely allowed to expire in response to the excesses of Kenneth Starr.

But this is a concern that runs deeper than the question of an independent counsel or special prosecutor. It's a bipartisan issue. It's not just Clinton who faces federal investigations. The "Bridge-gate" proceedings in New Jersey grind on, aimed at Donald Trump's transition chairman, Governor Christie, a Republican. In New York, a federal prosecutor, Preet Bharara, has pursued criminal prosecutions against both the Democratic speaker of the assembly, Sheldon Silver, and the Republican Senate Majority leader, Dean Skelos. Bharara has more recently targeted Joseph Percoco, a top aide to the Democratic governor, Andrew Cuomo. In Virginia, a Republican governor, Robert McDonnell, was sentenced to prison; the U.S. Supreme Court unanimously vacated his conviction.

Doubtless some politicians are dishonest. But it's far healthier for democracy if the voters get to sort that out in elections. Impeachment is also a constitutional option. The sad fact of it is that the politicians have been ensnared in the same overgrown criminal justice system that managed to entangle Martha Stewart, Conrad Black, and what often seems like half the black male population between the ages of 15 and 35. If some Democrat wants to run against Governor Christie for closing bridge lanes out of political spite, bring on the contest. And if a Republican wants to run against Hillary Clinton on the email or Foundation issues—well, we have just seen one try.

Our own sense is that while voters value honesty, they also view it as just one among many competing political virtues. Expectations about honesty in politics are so low that the lack of it doesn't carry quite the scandalous punch that it might have once used to. Voters discount that a lot of the prosecutorial puffery is just the criminalization of policy differences.

If there's poetic justice here, it's that Hillary Clinton, who went to Washington early in her career as a young lawyer investigating Watergate (that's how she knows William Weld) has found herself on the receiving end of the sort of investigations that hounded Nixon from office. Nixon's firing of the Watergate prosecutor was one of the developments that brought about the passage of the independent counsel statute whose constitutionality was doubted by Scalia in his Morrison v. Olson dissent.

Scalia's view was that, under the Constitution, the prosecutors work for and must be accountable to the president. Perhaps Hillary Clinton didn't fully appreciate the importance of that point back at Scalia's death in February. But in the coming months she may come all too well to understand its wisdom.

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  1. Hillary’s gonna clean house. Honestly, I’m scared for the FBI. Though, I give Comey credit for sticking his neck out for her back in July. That should not be forgotten.

    1. You are despicable, your tears will be extra delicious.

      1. Honestly I was hoping Trump would win. Would have been so much fun watching you guys crumple and wither under my iron will.

        1. I wasn’t referring to who wins. Contemplate that on the Tree of Woe?.

          1. You are despicable, your tears will be extra delicious.

            1. The only time you will see me cry is when the Republic has fallen. That and when bacon turns rancid. I shall not feed you again Troll, begone. *waves gold coin like a talisman

            2. Bacon does not tear up- he drinks those tears.

  2. But it’s far healthier for democracy if the voters get to sort that out in elections.

    Fuck democracy right in it’s ear.

    1. This.

      stringing up Hillary from a lamppost would be an insult to the lamppost

      1. Careful, now. You wouldn’t want to get Preet’s attention.

        1. I’m a former online poker pro.

          I already have the cocksucker’s attention.

  3. I see Scalia’s point, yet remained unconvinced that a bunch of retarded voters should decide someone’s guilt or innocence. How about just adhering to this: no one should be above the law.

    1. She lied under oath. Repeatedly. She blatantly obstructed justice by destroying evidence sought by subpoena, AT THE VERY LEAST. No one can deny that a serf would face serious prison time for that. She gets a pass. Every Democrat involved scandal is a fake scandal though, unless it’s dick pics. No one gets a pass for dick pics.

      1. Listening to the radio on my way to work this morning, there was a retrospective about the career of Janet Reno. One clip that played was of a Congressional hearing where she was being lambasted by a Democrat from Colorado, after the Waco shitshow. That would never happen today.

        1. John “Reparations 4-Evah” Conyers, from MI. I remember that, him raking Reno over the coals for that one, and he was pretty brutal about it.

          Mama Maximus has remarked back then, while she detested what went down at Waco, she remarked that Reno was quite tough, giving back what Conyers was dishing out. And your right, Dem-on-Dem action like that would be largely unheard of today, except in Monte Crusto’s fevered imagination.

        2. Certainly not to Eric Holder or Loretta Lynch.

        3. Reno okayed the murder of women and children. Good riddance!

          Fucking tanks used on people who refused to all be arrested for the warrants of a few people selling guns which should have been protected by the 2nd Amendment.

          Yup. That was under Bill Clinton’s presidency and now his tyrannical wife wants to burn more kids alive by starting WWIII.

  4. Perhaps Ken Starr is looking for a change of scenery.

  5. Here’s the problem though.

    1) Hillary Clinton’s problems essentially are the product of her hiding evidence from both outsiders and from Congress.

    2) The President authorized her to do this (what you think that all those cabinet secretaries using false name email addresses just happened?)

    3) The President has sabotaged any effort to enforce the law if it should call into question his leadership or make him look bad.

    So… how should this corruption be investigated?

    Quis custodiet ipsos custodes?

    1. And if the FBI and DOJ can’t be depended upon to fairly investigate corruption, how are the voters supposed to have the information necessary to act on it at the ballot box?

      1. The voters are too busy being concerned about the Trumpitler they saw on the news.

        1. Talking about grabbing someone by the pussy is much, much worse than mishandling confidential information, obstructing justice, lying under oath, overthrowing the Libyan government without Congressional authorization, setting up a gun-running operation in Benghazi and arming terrorists, lying to the American public about the reasons behind a terrorist attack on said operation, throwing a guy in jail to maintain your lie, destroying the lives and reputations of your husband’s rape victims, inciting violence at a political opponent’s rallies, or coordinating massive voter fraud. Put together.

          Think of the children.

      2. Exactly! How can Ira Stoll claim with a straight face that voters will punish corruption via the election process? Comey’s been eviscerated for commenting on the emails. And the person in charge of the case on the DoJ end is a regular dinner companion of Hillary’s campaign manager.

        1. Look at the bright side, if Trump wins tomorrow, Ira will suddenly see the value of independent counsels and doing anything possible to weaken the Presidency. Ira is just ready for Hillary.

    2. Right. I think Scalia was heading towards that sort of thing being the proper function of Congress through the impeachment process, but what will that do for you when you’ve got a president sharing a party with the majority of Congress? And as you point out, how can the voters settle it through election when the president can just fire the people doing the investigation?

      1. The Congress can’t even engage in proper oversight functions if DOJ won’t enforce its subpoenas. The head of the IRS, the AG and Lois Lerner were held in contempt of Congress for refusing to cooperate with Congressional investigations and the Obama DOJ said fuck you serve it yourself and nothing happened.

        Congress can’t hold the exectutive branch accountable if DOJ won’t prosecute contempt of congress or enforce its subpoenas.

      2. I think it is unconstitutional for branches to pass off their duties to other branches. For example, Congress not having to authorize every dime spent by the federal government every year.

  6. They created the independent counsel statute because Nixon put hacks in at Justice and the FBI that ensured that he wouldn’t be prosecuted no matter what he did. The Congress let it expire because it had been a long time since Nixon and they figured the downsides of having a independent prosecutor trying to justify his position outweighed the potential of another President corrupting DOJ and the FBI.

    Well, Obama has shown the country that yes, DOJ and FBI are again in need some outside adult supervision. We need to bring back independent councils. As bacon-magic points out above, the voters should not be the ones determining the criminal liability of politicians.

    1. Ultimately, Congress has one power to enforce its law upon the executive branch, and that is by impeachment. If they are unwilling to use that power, even against lesser officials than the President, then the independent counsel business is just smoke and mirrors.

  7. RE: ‘Crooked Hillary’ No Reason to Restore Independent Counsel Statute: New at Reason

    Yeah, sure.
    Let’s the criminals that elected to public office be immune from investigations and prosecution.
    Good thinking.
    Let that be a lesson to all you kids out there.
    Crime does not pay.

    1. :let the voters sort it out” is just another way of saying “do anything you want just so long as you win the election”.

      1. :let the voters sort it out” is just another way of saying “do anything you want just so long as you win the election”.


  8. Sorry, Ira, but if the laws governing criminal prosecution need reform they should be reformed for everyone, not just politicians. We can’t keep putting our ruling class above the law. If that weakens the Presidency, good! The President shouldn’t be an untouchable strongman. Let’s not forget, Nixon DID cover up a break-in, Reagan DID sell arms to Iran and funnel the money to the Contras, Bill Clinton DID commit perjury, and Hillary IS crooked. An independent prosecutor is the only way to get a political charged case away from a highly political Justice Department that won’t touch it’s own party’s crooks.

    1. The Presidency needs to be weakened. Thanks to rank partisanship, it is now virtually impossible to remove a President from office. And the President is term limited. So how other than an independent prosecutor is second term President ever going to be held accountable?

      1. The office of President was never meant to wield as much power as it does currently. Partisan politics(and Booooosh to be sure) has encouraged this to happen because of their lust for power and influence. Political parties need to be abolished and a random lottery system needs to be established to nominate candidates for the election process.

        1. Of course the government was not intended to be this powerful. Congress used to be part-time.

      2. Impeachment is the only way to rein in a president.

        It’s a pretty big hammer, but it is the only one tool the founding fathers put in the tool kit for congress.

        1. That is not true at all. The Congress has the power of the purse and can just cut off funding. They also can impeach the people around the president, which is easier but they still refuse to do. Congress can render a President irrelevant and powerless if it chooses to.

        2. Constitutionally limiting the power of the Federal government was also supposed to limit the power of the executive — but we gave up on and trampled that limit a long time ago.

      3. Apparently, Ira thinks a second term President should be able to break any laws they want with complete impunity since the voters can’t vote them out by then and, if their party also controls the House, they are in no danger of impeachment, either. Laws are for peasants.

  9. Just pass a law that if a grand jury, on its own initiative, “presents” a govt employee (accuses them of a crime), the case will automatically be set for trial and a court-appointed special counsel will prosecute.

    The Constitution allows for presentments, there would be no constitutional difficulty except those which crafty law-evaders will try to invent.

  10. If it was good enough for arms-for-hostages, it’s good enough for Money-for-military-intervention.

  11. Some politicians are dishonest. But it’s far healthier for democracy if the voters get to sort that out in elections.

    The complaint isn’t that Hillary is “dishonest,” it’s that she has committed with impunity numerous felonies for which others have gone to prison.

    1. ^^This is the point, direct and succinct.

  12. Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support.

    What in the wide, wide world of sports makes a libertarian in 2016 worry about reducing the zeal of a president’s staff? We have a President who has walked over Congress like it was a cheap carpet for 8 years and Stoll is worried about executive enfeeblement in confronting the legislature! And a libertarian wants us to be concerned about the President losing public support.

    I must have passed through some event horizon into a different universe than the one I inhabited this morning.

    1. When I read that I almost choked. Weaken the President and reduce the zeal of his staff is a bad thing? I want them very, very afraid of criminal prosecution, the lot of ’em.

    2. reducing the zeal of his staff

      Anyone who winds up on a President’s staff is usually a sycophant former hall-monitor who could afford a significant reduction in zeal.

  13. The 4th estate was supposed to keep the Government in check also. Look how that has turned out.

    1. They got bumped into the 5th Estate. The 4th Estate is also the (unofficial) Fourth Branch of the US Government, and the FCC is one of a slew of Alphabet Soup Agencies. The MSM has figured out, for the most part, where their bread is buttered, and whose toes they are permitted to step on.

  14. I think there are solutions to the problem, but they require a politically unlikely reformation of the electoral college.

    The electroal college is supposed to act as a moderating force. The vulgar masses elect representatives, who then choose the president. The vulgar masses are supposed to choose guys they approve of who then exercise their limited franchise soberly.

    The question is how to get the masses to select a good slate of electors, and how to align the incentives of the electors to satisfy the masses.

    One way to manage the incentives is quite simple: when an elector participates in an election, they have to put up a bond. The losers get their bond back immediately. The winners have their bond held in some sort of escrow, and they only get the bond back if a simple criterion is met. When the next slate of electors is selected, the same process is used to ask if the elector deserves his bond back. If they say yes, he gets it plus interest. If not… then he can kiss the money goodbye.

    The selection of electors should be modified as well. I really like the idea of both expanding their number (maybe one person per 50,000 would work). Nowadays we could even do it by proxy (i.e. you give your proxy to a person you trust, and if they have more than 50,000 proxies, they can participate and vote in proportion to their proxy).

    Last but not least, I suggest that rather than a single ballot, the electors pick the next president in much the way popes are picked.

    1. The changes in procedure with the electoral college, like the direct election of senators, is part of a century-plus long effort to erode the political and procedural safeguards of federalism that were supposed to protect Americans from mob-rule.

  15. This article really sickens me, frankly. Why do we need a Constitution, since it just restricts politicians and impedes democracy? Everything Scalia wrote about the position of an independent counsel could be written about that crusty old document. Why should words on paper written centuries prior restrict what voters can do today? If 50.1% of the population wants something, then it’s their inalienable right to force it on the rest of us, right?

    Libertarians should, better than anyone, understand the importance of rule of law and having institutions that check one another and limitations on government power. When the president is the boss of everyone in charge of prosecuting and investigating, that creates blatant conflicts of interest. And justice isn’t about the ballot box or democracy. What Ira is writing about here is just mob rule hidden beneath the pathetic worship of democracy. People are stupid, people are biased, and in my estimation, all of those factors are only increased when acting collectively and voting for representatives.

    1. I think you’re giving short shrift to Scalia’s argument, the crux of which is that all of the following are executive powers:

      1. Investigating crimes
      2. Prosecuting crimes
      3. Making appointments to executive offices

      Thus Congress cannot appoint an independent counsel with investigatory or prosecutory powers because those are executive functions, and any position it would create to perform those functions would have to be filled by Presidential appointment. That is a strict interpretation of the Constitution’s vesting of the executive power in the office of President.

      I don’t think Ira Stoll fully appreciates this argument, but it is deeper (or, at least, different) than Stoll makes it out to be. Scalia isn’t saying the Congress cannot check the President. Only that Congress cannot check the President in this particular fashion. Besides the power to impeach any executive official, Congress holds the legislative power. Congress can make hell for the President in many ways, if they actually want to.

      1. On the other hand, Attorney General is not a constitutional office, it was created by Congress through legislation and they certainly could create an office of Independent Prosecutor as well. The President could still appoint, or appoint a committee to appoint, but it could have to go through the Senate. In some cases congress can appoint officers, and was even explicitly given the power to use the militia to enforce laws. Not to mention that the power of impeachment implies some ability to investigate prior.

  16. Apparently IRA agrees with Nixon: It’s not illegal when the president does it. And the only recourse to criminal activity is the ballot box.
    This is the stupidest thing I read here in a long time. And that’s quite an accomplishment considering some of the people who write here.

  17. “If there’s poetic justice here, it’s that Hillary Clinton, who went to Washington early in her career as a young lawyer investigating Watergate……”

    ….where she got an early start showing what a disgrace she is.

    “Jerry Zeifman, a lifelong Democrat, supervised the work of 27-year-old Hillary Rodham on the committee. Hillary got a job working on the investigation at the behest of her former law professor, Burke Marshall, who was also Sen. Ted Kennedy’s chief counsel in the Chappaquiddick affair. When the investigation was over, Zeifman fired Hillary from the committee staff and refused to give her a letter of recommendation ? one of only three people who earned that dubious distinction in Zeifman’s 17-year career.


    “Because she was a liar,” Zeifman said in an interview last week. “She was an unethical, dishonest lawyer. She conspired to violate the Constitution, the rules of the House, the rules of the committee and the rules of confidentiality.”

    1. Citation, please? I might want to show this to my wife (who has already voted for Hillary).

      1. I tried to post a link but I kept getting an error message that I had a word over 50 characters.

        1. Try tiny url or just put a space in between it.

          We’ll copy/paste into google and find the link.

          P.S. Where the hell have you been? Nice to see you again.

  18. “Some politicians are dishonest. But it’s far healthier for democracy if the voters get to sort that out in elections”

    Are there any other situations in which justice should be reduced to a mere popularity contest, or are crooked politicians the only one?

  19. “Some politicians are dishonest. But it’s far healthier for democracy if the voters get to sort that out in elections”

    Is Ira Stoll aware that sometimes politicians are crooked because they’re breaking the law to win elections?

  20. What about second term presidents who won’t be up for reelection? What about the partisanship that would just about allow a sitting President to eat a live baby on TV without being forced from office? Damn, this was a poorly thought article.

    Politicians should, really must, be answerable to the same laws and rules as a typical citizen.

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