Sunday, May 21, 2017

Special Counsel investigations have a long tradition of failure.

When former FBI Director Robert Mueller was appointed Special Counsel to pursue the investigation of alleged ties between Donald Trump's Presidential campaign staff and the Russian government, Democrats were elated. The headline in Politico summed the liberal sentiment succinctly: "Trump’s Worst Nightmare Comes True". In the Democrat universe, Robert Mueller is the Beowulf come to slay the Trumpian Grendel, something the Democrats (Geats) under Chuck Schumer (Hrothgar) are too weak and timid to do themselves.

Just as Beowulf is great epic poetry, the Democrat view of "Russiagate" is great political drama--at least to the Democrats.  Alas for the poor Democrats, the history of Special Counsels and the actual facts of Russiagate tells a much different--and much less gripping--tale.

Invariably, all Special Counsels are compared to the archetypes of the office, Archibald Cox and Leon Jaworski, the attorneys who ran the Watergate investigations that toppled President Richard Nixon in 1974. Arguably, all Special Counsels have visions (or delusions) of grandeur whereby they achieve results as monumental and historic as Cox and Jaworski.  Unfortunately, for both Special Counsel and Democrat in Congress alike, Special Counsels since Watergate have spent much, proved little, and accomplished less.

Moreover, Cox and Jaworski had perhaps the easiest mandate to fulfill, as that scandal's timeline of events makes clear.

Watergate began with a burglary--a mundane crime but indisputably a crime--and also an arrest, as the "Plumbers" were caught in the middle of the break-in. That Nixon specifically and explicitly attempted to thwart investigation into this burglary was the malfeasance that ultimately drove him from office. In Watergate, the answer to the imperative first question for all Special Counsel was simple and straightforward: burglary and obstruction of justice.

Watergate was made an even easier task for Cox and Jaworski due to the Plumbers themselves having been indicted (in September, 1972) and convicted (in January, 1973) for the break-in. Crimes were not merely alleged, but positively proven.

The scope of the Watergate scandal was also amply demonstrated prior to the Cox' initial appointment. L. Patrick Gray, who succeeded J. Edgar Hoover as FBI Director in 1972 and was confirmed in 1973, testified during his confirmation hearings that White House Counsel John Dean has "probably lied" to FBI investigators. Gray also was forced to resign in April of 1973 after acknowledging that he had destroyed files (arguably evidence) from Plumber operative E. Howard Hunt's safe.

All of these events occurred before Archibald Cox' appointment as Special Prosecutor on May 19, 1973. The shape and even scope of the scandal were thus well defined long before his investigation could even begin.

In the Iran-Contra scandal of Ronald Reagan's second term, the first reporting of the events occurred in November of 1986, While the public recitation of the matter was both salacious and scandalous--with United States selling arms to the same Iranian government that had seized the American embassy in Tehran not ten years prior, the proceeds of which were used to lend aid to the Nicaraguan Contra rebels despite a Congressional ban on such aid--the outlines of any actual criminal offense were at best imprecise and at worst nonexistent. In addition, the Democrats wasted no time in appointing a Special Counsel, with Lawrence Walsh receiving his mandate in December of 1986, while the essential events themselves were still being learned.

It comes as no real surprise that Lawrence Walsh secured no convictions on the substantive issues of Iran-Contra, with most of the guilty pleas being for either perjury or withholding information from his investigation.  The biggest convictions in that scandal were almost all overturned on appeal.

As murky and confusing as Iran-Contra was, Whitewater was murkier still.  While the core of the scandal read as run-of-the-mill real-estate, bank, and wire fraud, which was caught up in the Savings and Loan crisis of the late 1980s, the extent of President Bill Clinton's involvement was and is a matter of debate and conjecture.  A report on Whitewater and the related failure of Madison Guaranty Saving and Loan prepared for the Resolution Trust Corporation described Bill Clinton as a "passive" investor, which is to say the Clinton's invested money but were not involved in the decision-making; as they lost money on the venture, this would make them more victim than perpetrator.  Yet the swirl of questions and confusion surrounding the matter did not stop Congress for pushing for an independent counsel even as Bill Clinton was taking office--Robert Fiske was appointed by Clinton Attorney General in 1993, and was replaced by Ken Starr shortly afterward to remove any possible conflict of interest taint.

The failed real-estate venture itself produced a number of convictions, including that of then-governor of Arkansas Jim Guy Tucker, Madison Guaranty owner Jim McDougal and his wife Susan. However, the major accomplishments of the Ken Starr investigation were securing a guilty plea from Webster Hubbell, one-time Associate Attorney General and law partner of Hillary Clinton, for overbilling clients--a matter wholly unrelated to Whitewater itself--and the impeachment show trial of President Bill Clinton for his perjured testimony in relation to his extramarital affair with White House intern Monica Lewinsky. The impeachment proceedings were demonstrably more damaging to Republicans than to either the Democrats or Bill Clinton, being seen publicly as petty and vindictive.

The Valerie Plame Affair, a presumed national security brouhaha arising from the potentially unlawful disclosure of the name of a CIA employee, is perhaps the murkiest and most confusing scandal for which special counsel was named. To this day, it is by no means certain that a criminal act even occurred; the only conviction secured by special counsel Patrick Fitzgerald was that of Lewis "Scooter" Libby, an aide to Vice President Dick Cheney, for perjury committed during Fitzgerald's investigation.

Russiagate shares more in common with the Plame Affair than it does Watergate. When a proud Hillary Clinton supporter such as noted law professor Alan Dershowitz states repeatedly that any interaction between Donald Trump and Russia was not criminal, when former Director of National Intelligence James Clapper and Senator Dianne Feinstein state publicly there is "no evidence" of collusion between President Trump and the Russian government to win the election, the obvious question must be asked: "where is the crime?" So far, as Dershowitz reminds us, there is no provable crime even alleged, much less proven.

A review of these histories of Special Counsel investigation also highlights their epic failure to bring substantive prosecutions, or even to meaningfully impair a Presidency. Watergate did end in Richard Nixon's resignation, but Iran-Contra did not stop Ronald Reagan from meeting with Soviet Premier Mikhail Gorbachev in Reykjavic, nor from completing the Intermediate-Range Nuclear Forces Treaty with the Soviet Union in 1987. Iran-Contra did not stop President George H. W. Bush from bringing the Cold War to an end with a strategic alliance with Russia in 1991 (coming on the heels of the dissolution of the Soviet Union), nor from assembling the multi-national coalition to push Iraq out of Kuwait in Desert Storm. Whitewater did not prevent President Bill Clinton from signing the North American Free Trade Agreement, his signature Omnibus Crime Bill of 1994, nor the Balanced Budget Act of 1997. The Plame Affair did not prevent President George W. Bush from completing a transition to representative government in Iraq, nor from executing the "surge" strategy in 2007 under General Petraeus.

Far from imperiling or even damaging a Presidential term of office, the existence of a Special Counsel is a curious harbinger of Presidential success.  Every President between 1981 and 2009 endured a special counsel investigation; each had significant policy successes during and after the Special Counsel's investigation. Presidents Clinton and George W. Bush won reelection despite the presence of a Special Counsel. Contrast that with the tenure of Barack Obama, whose signature domestic achievement, "Obamacare", is already being undone by the GOP Congress even as it collapses in a death spiral of ever increasingly unaffordable insurance premiums and deductibles, and whose signature foreign policy achievements--the overthrow of Libyan dictator Muammar Gaddafi and the controversial nuclear arms deal with Iran--seem to have exacerbated Middle East tensions rather than ameliorated them.

It is always possible that Robert Mueller will unearth some damning bit of evidence that will topple President Trump. It is always possible that he will at last prove the Trump-Russia "collusion" narrative that Democrats continue to push despite a complete lack of evidence. It is far more likely, however, that Robert Mueller will either exonerate Donald Trump completely, or at worse indict a few people close to him for perjury, withholding information, and other arbitrary offenses arising more from the investigation itself than the underlying scandal.

Special Counsel do a lot of investigating, a lot of chasing after suspects, a lot of issuing of subpoenas. What they do not do a lot of is winning. That is the history of Special Counsel in this country.