OPINION:
Evidence coming to light in the past several weeks paints a clear picture: In the summer of 2016, Hillary Clinton authorized her campaign team to “smear Donald Trump” by attempting to connect him to Russian interference in the election.
She did this partly to distract from mounting pressure to answer claims about her missing emails. Obama officials jumped in shortly thereafter and used intelligence and criminal investigative agencies, including the FBI and CIA, to lend these claims the patina of legitimacy.
These people, including the president himself, repackaged a mix of bad and benign intelligence to substantiate false claims that Mr. Trump colluded with Russia to win the election. CIA Director John O. Brennan overruled objections from his senior intelligence officials by concluding that Russian leader Vladimir Putin and Russia had “aspired to help Present-elect Trump’s election chances.”
The width and breadth of the collusion that evidently took place to undermine the Trump campaign and later the Trump presidency is truly staggering.
In light of these revelations, several senators have called for the appointment of a special counsel to investigate the matter. They think a special counsel would have the resources and singular focus to determine whether to bring criminal charges. An appointment would also discredit claims that the Trump administration is engaging in political retaliation.
So far, the Justice Department has not indicated that the attorney general intends to appoint a special counsel. Rather, the department has designated a strike force to investigate potential next steps and determine whether criminal charges will be brought.
The attorney general should reject calls for appointing a special counsel for at least three reasons. First, special counsels take an inordinate amount of time to accomplish their assigned tasks; they are not obligated to meet deadlines. John Durham’s investigation took more than three years and yielded a 300-plus-page unclassified report that barely registered on the public’s radar. The all-important annex recently brought to light was kept hidden from the American people until last week.
Next, appointing a special counsel is unnecessary because there are no conflict-of-interest issues. Traditionally, special counsels are tasked with investigating officials in the current administration. The Obama officials who would inevitably be targeted are private citizens who do not serve in the Trump administration. In theory, it makes sense that an administration assigns a person outside the government to investigate government officials. That theory doesn’t apply here, as any special counsel would be investigating former officials.
Most important, appointing a special counsel raises legal and constitutional problems that would inevitably be litigated before any investigation could begin. Last summer, Judge Aileen Cannon ruled that former special counsel Jack Smith’s appointment was improper because it violated the Constitution’s appointment clause.
Special counsels wield the same authority as U.S. attorneys, yet they are not subject to confirmation by the Senate. Nor are they subject to the impeachment process. No law gives the attorney general statutory authority to appoint a special counsel. Rest assured that these arguments will be presented (and possibly litigated to the Supreme Court) should any special counsel indict Mrs. Clinton or another former Obama official.
The Justice Department has constitutional and statutory authority to investigate and prosecute federal law violations. A task force of experienced criminal prosecutors and investigators answerable to the attorney general will quickly and decisively determine whether to bring criminal charges.
Talk of appointing any special counsel detracts from the central point: Mrs. Clinton and others in the Obama administration appear to have weaponized intelligence resources to destroy a political rival. The people responsible should be held accountable.
• Michael O’Neill is vice president of legal affairs at Landmark Legal Foundation, a public interest law firm in Leesburg, Virginia.
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