How Special Prosecutors Taught Us All a Lesson For Donald Trump To Heed

Donald Trump’s threat to appoint a special prosecutor to put Hillary Clinton in jail is generating a volcano of outrage among the Democrats. They suggest it’s anti-democratic, abusive, cross-wise with the spirit of the Constitution, and thuggish.I agree with them.Then again, too, I have been against the use of these kinds of prosecutors for decades — all the way back to when the Democrats were egging on special prosecutor Archibald Cox against President Richard Nixon. I thought Robert Bork was right to fire Cox.A lot of good it did him. At the time, Bork held one of the most exalted offices in the Justice Department, solicitor general. When Nixon decided to fire Cox, both the attorney general, Elliot Richardson, and his deputy, William Ruckelshaus, resigned.It was Robert Bork who finally obeyed the Constitution and carried out Nixon’s order. When years later, President Reagan nominated Bork to the Supreme Court, Bork was submarined by, among others, Democrats still angry that he fired a special prosecutor.Is all that relevant to the current controversy over Donald Trump’s vow that, if elected president, he’ll sic a special prosecutor on Hillary Clinton? To me it is, because one of the issues in this election is the Democrats’ hypocrisy.It was, after all, the Democrats who in the modern era most vehemently defended these prosecutors. Jimmy Carter signed the Ethics in Government Act, which established the Office of Independent Counsel.Congress passed the law after Watergate. It removed special prosecutors from normal oversight, which was challenged on constitutional grounds in a case known as Morrison v. Olson. The Supreme Court okayed the law by a vote of seven to one.Who dissented? None other than the most right-wing justice, Antonin Scalia. He worried that prosecutors empowered to pursue a president without limits could go so far as to affect the commander in chief’s very “boldness.”A runaway counsel, Lawrence Walsh, later jumped his traces in the Iran Contra scandal. No Democrat raised so much as a peep of protest. It would take pardons from President George H.W. Bush to rescue Caspar Weinberger and others over-zealously pursued.And then came the Clintons. As the Whitewater scandal exploded, a three judge panel eventually named Ken Starr an independent counsel. He pursued President Clinton through thick and thin until, finally, Mr. Clinton was impeached.At the time I thought it was wrong, even if the Supreme Court had okayed the independent counsel law. A fine and honest man, Starr, but even he could not resist the arrogance that comes to prosecutors who have no political oversight.Eventually, Mr. Starr’s investigation led to the impeachment of President Clinton, and, as the Constitution requires, a trial was held in the United States Senate. Clinton was acquitted by a Republican Senate.Later, the commission that investigated 9/11 came to a startling conclusion — that before 9/11, our covert operators in Afghanistan once had Osama bin Laden in their sights but couldn’t get clearance to fire.The reason was that President Clinton’s underlings thought he was too distracted by the scandal to focus on it. In other words, the boldness of the president had been lost, just as Justice Scalia had feared.There will no doubt be those who will say that all this is irrelevant to the controversy over Trump’s vow to sic a special prosecutor on Hillary Clinton. He’s prejudged her and, if he wins, she won’t even be in government.Mr. Trump’s partisans point out that this is what happens when a politicized director of the FBI, like James Comey, gives a pass to a powerful politician in the middle of an election. Surely that invites a special prosecutor.Of course, that’s what everyone thought — Democrats and Republicans — back when Archibald Cox was named to pursue Watergate. Then things got out of hand. As they did under both Reagan and Mr. Clinton.After the Clinton impeachment failed, Congress decided not to renew the independent counsel statute. It doesn’t end the idea of special prosecutors altogether. But the episode offers a powerful warning for Donald Trump to heed.It might be summed up in the notion that in politics it just pays to focus on governing and to resist the temptation to revenge. For if the Constitution had not only a preamble but a “post-amble,” it might well be an injunction to remember that what goes down, comes around.

How Special Prosecutors Taught Us All a Lesson For Donald Trump To Heed

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