Brava for Bondi

Congratulations to Attorney General Bondi for confronting the issue of special counsels. Brava. The freshly minted prosecutor-in-chief tells Fox News’s Sean Hannity that “special counsels from here on out in our country will be legally appointed, and they won’t be done constantly like they have been done in the past. The weaponization of government will end. No more special counsels out there targeting anyone.”What a refreshing development. These columns have been tracking the baleful influence of special counsels for 20 years, and our editors for 25 years before that. Recent years have seen the proliferation of special counsels — not only Jack Smith, but also, most recently, Robert Mueller, Robert Hur, John Durham, and David Weiss. It’s nice to finally have an attorney general who gets why they offend the logic of our Constitution.The warning on independent counsels — those were the precursors to today’s special counsels — was sounded by Justice Antonin Scalia in the 1988 case of Morrison v. Olson. He warned that a prosecutor coloring outside of the constitutional lines was injurious to the separation of powers and an affront to the prerogatives of the executive. They threatened not only presidents, but also their staff who “typically have no political base of support.” Justice Scalia concluded that the existence of an independent prosecutor “deeply wounds the President, by substantially reducing the President’s ability to protect himself and his staff,” who are liable to be “intimidated” by a roving prosecutor. Scalia’s dissent was the only one, but a decade later both parties allowed the independent counsel statute to lapse, suggesting that swaths of America came to concur with the far-sighted jurist. Ms. Bondi told Mr. Hannity that she reckons another jurist, Judge Aileen Cannon, to have made a “brilliant” decision when she disqualified Mr. Smith from prosecuting the Mar-a-Lago case. The Floridian, channeling the spirit of The Great Scalia, found in that decision that the special counsel’s appointment “effectively usurps … important legislative authority … in the process threatening the structural liberty inherent in the separation of powers.”Could the stars be aligning for Morriosn to be overruled? Judge Cannon’s ruling marks that possibility, and an amicus brief written in support of that decision cites Scalia to argue that “the Special Counsel, like the Independent Counsel, still comes as a wolf.” Judge Cannon reckoned that a Supreme Court case that appeared to allow for subordinate special prosecutors, United States v. Nixon, is not “binding precedent.” Will Miss Bondi lift up that line?It could be that Ms. Bondi, like attorneys general before her, will feel compelled to appoint a special counsel. Mr. Smith’s example was an unusual one — he was never confirmed by the Senate, he was appointed by Mr. Trump’s political rival, and his Javert-like search for a crime spanned multiple jurisdictions. If, though, she moves against the practice, she could start with at least two justices — Clarence Thomas and Brett Kavanaugh — sympathetic. Judge Cannon, our A.R. Hoffman reports, also dented another dimension of the special counsel’s brief — the release of a special report. She greenlit the release of Mr. Smith’s dossier relating to January 6, but blocked the dissemination of the report concerning Mar-a-Lago because “there is no ‘historical practice’ of providing Special Counsel reports to Congress, even on a limited basis, pending conclusion of criminal proceedings.”The DOJ has moved before the 11th Circuit to end the Mar-a-Lago case. Judge Cannon’s point stands — that doings of the special counsel, which are prescribed by the thin reed of regulation — cannot trump the due process rights vouchsafed in the parchment. Now she has another Floridian — Ms. Bondi — announcing a commitment to push back on special counsels. The greatest of our revolutionary Founders must be looking on with smiles from above.

Brava for Bondi

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