Time for a Special Prosecutor

But Democrats who would like to remove Trump through the impeachment process will likely confront a Republican majority in the Senate.

Greg Spooner holds a sign during a protest outside of the offices of Sen. Dianne Feinstein in San Francisco on Wednesday. Dozens of protesters chanted slogans outside of Feinstein's office in protest of President Trump's firing of FBI director James Comey.
AP Photo/Marcio Jose Sanchez
May 15, 2017, 8 p.m.

Al­most as soon as the votes were coun­ted in Novem­ber, some Demo­crats began clam­or­ing for the ap­point­ment of a spe­cial pro­sec­utor to look at al­leg­a­tions of Rus­si­an in­volve­ment in the pres­id­en­tial cam­paign, either to hurt Hil­lary Clin­ton or help Don­ald Trump, or both. These calls were, in my view, way over the top. It has long been the case that when mem­bers of the op­pos­ite party scream cov­er-up, some eager politicos will start scream­ing for an in­de­pend­ent in­vest­ig­a­tion. After all, any­thing worthy of the term scan­dal de­serves its own pro­sec­utor, right?

Un­til Pres­id­ent Trump’s ab­rupt fir­ing of FBI Dir­ect­or James Comey, these calls were at best pre­ma­ture and more likely en­tirely ex­cess­ive. There had been no reas­on to be­lieve that the FBI couldn’t or shouldn’t be trus­ted to get to the bot­tom of any wrong­do­ing.

Not­with­stand­ing the far­cic­al nature of the House In­tel­li­gence Com­mit­tee (do they real­ize how ri­dicu­lous they’ve looked?), the Sen­ate In­tel­li­gence Com­mit­tee, led by Re­pub­lic­an Chair­man Richard Burr and Demo­crat­ic rank­ing mem­ber Mark Warner, demon­strated a strong com­mit­ment to get­ting to the bot­tom of the af­fair. They were act­ing in a way con­sist­ent with the kind of bi­par­tis­an­ship that once was routine on Cap­it­ol Hill.

But Comey’s fir­ing changed everything. At­tor­ney Gen­er­al Jeff Ses­sions, in clear de­fi­ance of his pre-con­firm­a­tion prom­ise to re­cuse him­self from any­thing re­lated to the 2016 cam­paign, re­com­men­ded and helped con­struct a ra­tionale for ax­ing Comey. Now there is def­in­itely reas­on to ques­tion wheth­er the FBI and the Justice De­part­ment can be trus­ted to do their job. It is pre­cisely for situ­ations like this that spe­cial pro­sec­utors have been named in the past and why must one be named now. In one single act Trump af­firmed the worst fears of his most com­mit­ted crit­ics and dashed the best hopes of es­tab­lish­ment Re­pub­lic­ans.

As di­li­gent and im­par­tial as the Sen­ate In­tel­li­gence Com­mit­tee has been, it may no longer may be enough. Its Re­pub­lic­an mem­bers are go­ing to be put un­der enorm­ous pres­sure by oth­ers in the GOP to ease up, while everything that Demo­crats on the com­mit­tee try to do will be seen by some in a par­tis­an light. But even if a spe­cial pro­sec­utor is ap­poin­ted, there is still an im­port­ant role for the Sen­ate In­tel­li­gence Com­mit­tee. A pro­sec­utor’s role is to seek justice; a con­gres­sion­al com­mit­tee’s aim is to get at the truth and air its find­ings to oth­er le­gis­lat­ors and the pub­lic.

Polit­ic­ally, the Comey fir­ing puts con­gres­sion­al Re­pub­lic­ans in an aw­ful bind. In­de­pend­ent voters, who pri­or to the scan­dal had been giv­ing Trump a job-ap­prov­al rat­ing in the mid-30s and were largely un­happy with the House-passed health care bill, will be look­ing to see if Re­pub­lic­ans can keep Trump in check. They will want to see day­light between their Con­gress mem­ber and Trump. But polls have shown that among Re­pub­lic­an voters, the pres­id­ent’s ap­prov­al rat­ings have been in the 80s, and many will take a dim view of their rep­res­ent­at­ives dis­tan­cing them­selves from the pres­id­ent. Law­makers who break from Trump face the pos­sib­il­ity that they could face a primary chal­lenger from a Trump-backed can­did­ate, or that the pres­id­ent’s loy­al­ists will simply stay home in the gen­er­al elec­tion.

Many Demo­crats who had pre­ma­turely called for a spe­cial pro­sec­utor have now moved on to im­peach­ment, again get­ting out way over their skis. It should be re­membered that pres­id­en­tial im­peach­ment pro­ceed­ings have only been com­menced by the House three times, against An­drew John­son, Richard Nix­on, and Bill Clin­ton. In each case, Con­gress was in the hands of the op­pos­i­tion party. Put­ting aside the leg­al tests for im­peach­ment, the bar for a party im­peach­ing its own pres­id­ent, par­tic­u­larly in the peri­od of in­tense par­tis­an­ship that we have today, is al­most im­possibly high. In short, it is pretty far-fetched to ima­gine a move­ment to­ward im­peach­ment get­ting any­where as long as the House re­mains in Re­pub­lic­an hands. A con­vic­tion is even more im­plaus­ible so long as the GOP has a ma­jor­ity in the Sen­ate, which is pretty likely be­cause in 2018 it is de­fend­ing only nine seats com­pared to the 25 that Demo­crats are try­ing to hold.

In short, to the con­sterna­tion of Re­pub­lic­ans, this scan­dal is not go­ing away any­time soon. The scut­tle­butt is that a fairly siz­able por­tion of the al­most 14,000 FBI spe­cial agents were very loy­al to Comey and were of­fen­ded by his fir­ing. They are un­likely to go quietly in­to the night. As the late Mark Felt, who served as the FBI’s deputy dir­ect­or, showed dur­ing the Wa­ter­gate in­vest­ig­a­tion, the FBI can leak to the press without leav­ing fin­ger­prints.

But Demo­crats who are push­ing im­peach­ment are bound to be dis­ap­poin­ted. A wave elec­tion may get them con­trol of the House, but the like­li­hood of a Re­pub­lic­an ma­jor­ity in the Sen­ate will prob­ably sty­mie con­vic­tion. Bar­ring some jaw-drop­ping rev­el­a­tion, the ma­chinery of gov­ern­ment works so slowly that Trump can be reas­on­ably con­fid­ent that he will serve a full term.

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