The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No Special Counsel for the Epstein Suicide Investigation
It would be a terrible idea to appoint a special counsel to investigate the Jeffrey Epstein suicide and scandal.
President Donald Trump has had an extraordinary first six months in office. To mention just a few of the great things he has done: (1) President Trump bombed Iran to prevent the most terrorist-friendly nation in the world from getting a nuclear bomb; (2) he then ended the Israeli-Iranian war in 12 days, and stopped a war from starting between two nuclear-armed powers, Pakistan and India, which is a lot more than President Obama ever did to win a Nobel Peace Prize; (3) he has eliminated what had been a torrent of illegal aliens entering the U.S. by crossing the Mexican-American border, which President Biden had allowed; (4) he cut taxes by 4.5 trillion dollars from 2025 through 2034; (5) he is succeeding where even President Reagan failed in eliminating the unconstitutional Department of Education; (6) his Justice Department appears to have persuaded six Supreme Court Justices to recognize that there can't be "independent agencies" in the sense of agencies exercising executive power that are independent of control by the elected executive, agencies that have plagued us since 1935; (7) he has taken on the Deep State by firing more than 50,000 civil service employees as of today; (8) he is already, in his second term, beginning to nominate excellent new federal judges, such as Jennifer Mascott, whom he intends to nominate to the Third Circuit; (9) his Justice Department has persuaded the Supreme Court to end nationwide injunctions; and (10) he has gotten rid of thousands of regulations hampering the oil and gas industries and most other private sector businesses as well.
Given these genuinely important policy decisions—even his opponents will agree that they are important—and others that are currently being considered, the flare-up over the Jeffrey Epstein files is a pointless distraction. Epstein committed suicide in prison six years ago. Jeffrey Epstein is dead and deservedly so. His principal partner in crime, Ghislane Maxwell, was sentenced to twenty years in federal prison, which means she will be in jail until she is 81 years old. President Trump's Attorney General Pam Bondi, who I think is an excellent and experienced prosecutor, has investigated the Epstein matter and found (1) no client list of powerful people that Epstein and Maxwell had worked with; and (2) no evidence that Epstein was murdered six years ago rather than having committed suicide.
There is no reason to doubt Attorney General Bondi's findings. If there had been any evidence that Donald Trump was an Epstein client, would President Biden's Justice Department and FBI have kept it quiet, with no disclosure or leak?
Nor would appointing a Special Counsel help matters. First, as a legal matter the Justice Department's regulation providing for the appointment of Special Counsels is unconstitutional, as Gary Lawson and I explained in Why the Appointment of Robert Mueller Was Unlawful, 95 Notre Dame Law Review 87 (2019).
Second, as Justice Scalia observed in Morrison v. Olson (1988), appointment of Special Counsels is awful policy. With a Special Counsel, an extraordinary amount of money and lawyerly attention gets focused on one matter to the exclusion of other legal criminal claims that might be brought that are much more meritorious. As Justice Scalia noted,
Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected, and can be removed, by a President whom the people have trusted enough to elect…. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and, since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive … is that it tends to conceal faults and destroy responsibility." Id. at 427.
That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive-Branch officials? If an allegation is made against them of any violation of any federal criminal law …, the Attorney General must give it [her] attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools [or, I might add, after a political and politicized outcry from opponents and the media -SC], the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President….
The [Special Counsel] thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things, this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual.
Can one imagine a less equitable manner of fulfilling the Executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"?
To be sure, the investigation must relate to the area of criminal offense specified by the [Attorney General]. But that has often been (and nothing prevents it from being) very broad—and should the [Special Counsel] or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the [Attorney General] to expand his or her authority …. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result—the judges hostile to the administration, the [Special Counsel] an old foe of the President, the staff refugees from the recently defeated administration—there would be no one accountable to the public to whom the blame could be assigned.
Nor would the problem be much ameliorated by framing the Special Counsel investigation as an inquiry into an incident, not a search for possible crimes by a particular person (given that the key person, Jeffrey Epstein, is dead). Many of the unfair and destructive Special Counsel investigations of the 1980's and 1990's were investigations into incidents that then turned into (or turned out to have been) be witch hunts to get whoever was the President at the time.
The Iran-Contra Independent Counsel, Lawrence Walsh, was appointed on Dec. 19, 1986 to investigate the Iran-Contra Affair in general with Oliver North and John Poindexter as the prime suspects. He got convictions of both of them, which were overturned on appeal.
He then indicted former Reagan Secretary of Defense, Caspar Weinberger, on two counts of perjury and one count of obstruction of justice six years later, in June 1992. And on the eve of the 1992 presidential election, October 30, he reindicted Weinberger on one count of false statements, along with indicting five other top Reagan Administration officials—all in violation of Department of Justice policy about not indicting people close to an election. One sentence in the October 30th indictment suggested that Walsh was trying to convict Weinberger to "flip him" into being a prosecution witness against then-President Bush who "might" have known about Iran-Contra when as Vice President he had been a member of the National Security Council. This may have contributed to Bush's loss to Bill Clinton. Two months later, a judge threw out the re-indictment of Weinberger for having been outside the statute of limitations.
Sure, the Iran-Contra investigation was framed as an investigation into a broader incident, but the Democrats' goal from the start was to get Reagan or Vice President Bush. I graduated from Yale Law School in 1983, and all my most left-wing friends from YLS ended up serving on Walsh's staff, in a way that fit Justice Scalia's observation in his Morrison v. Olson dissent.
Same thing with Ken Starr, and the investigation of the alleged improper financial dealings Bill Clinton had with the Whitewater Development Corporation. Starr was appointed on August 5, 1994 to investigate the Whitewater matter, but he served for more than four years. His investigation turned into an investigation of Travelgate, then turned into an investigation of Deputy White House Counsel Vince Foster's death by suicide, and then ended with Starr accusing Bill Clinton of perjuring himself and obstructing justice when he denied having sex with then-White House intern Monica Lewinsky.
Here too a special counsel investigation into one incident metastasized into an indictment for perjury in a totally unrelated matter and led to only the second impeachment ever of a sitting President by the House of Representatives. The goal became to get Bill and Hillary Clinton, and it likely helped succeed in preventing Hillary Clinton from being elected President. By 1994, I was Chairman of the Board of Directors of the Federalist Society, and all my most right-wing Federalist Society friends were serving on Ken Starr's staff, just as Justice Scalia predicted.
Same thing with the Jeffrey Epstein incident. Yes, people rightly hate Epstein, but this thing would not be the lead story in every newspaper in the country if it were not yet another attempt to get something on, eventually, Donald Trump. But you might say, the statute of limitations has run out on this matter since Epstein died six years ago. Forget that idea! A special counsel will get anyone who knew Epstein, which includes Donald Trump, to testify under oath about every conversation they ever had with Epstein, and then indict them all for allegedly perjuring themselves, making false statements, and obstructing justice, i.e., the Special Counsel's investigation.
And Justice Scalia's policy argument against court-appointed Special Counsels applies with equal vigor to Attorney-General-appointed Special Counsels. It's always worth returning to the April 1, 1940 speech to all the U.S. Attorneys given by then Attorney General, and future Supreme Court Justice, Robert Jackson:
It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice' or other base motives, he is one of the worst.
These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people: who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.
Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.
The bottom line is that it is a bad idea, as a matter of policy, as well as of constitutionality, for the Attorney General to ever appoint a Special Counsel to investigate anything. Attorney General Bondi should not appoint a Special Counsel to investigate Jeffrey Epstein's suicide six years ago. She should, instead, repeal the unconstitutional 1999 Department of Justice Regulation, enacted by former Attorney General Janet Reno, under which Special Counsels like Robert Mueller and Jack Smith were appointed.
