Editor’s Note: For an alternative viewpoint, please see: Counterpoint: No Special Prosecutor
There has never been a clearer case for the appointment of a special counsel than there is for the investigation of potential collusion by Trump campaign officials in Russia’s covert influence operation targeting the 2016 U.S. presidential election. In fact, Department of Justice regulations require the appointment of a special counsel if an investigation would present a conflict of interest for the Justice Department or if other extraordinary circumstances warrant such an appointment.
After just eight weeks in office, President Donald Trump’s norm-busting administration has repeatedly demonstrated that it simply cannot be trusted to investigate itself on anything, let alone a matter as fundamental to our democracy as the integrity of a presidential election. The American people need a special counsel.
We now know definitively that there is already an investigation of possible ties between Trump campaign officials and Russian election interference underway. In testimony to Congress on March 20, FBI Director James Comey took the extraordinary step of publicly confirming an ongoing counterintelligence investigation of “links between individuals associated with the Trump campaign and the Russian government, and whether there was any coordination between the campaign and Russia’s efforts.”
That threshold having been met, the decision to appoint a special counsel turns to two questions: First, is there a conflict for the Trump Department of Justice or other extraordinary circumstances in conducting the investigation? And second, is it in the public interest to appoint a special counsel?
Only the blindness of partisanship could obscure the obvious conflict of interest for the Trump administration in investigating a matter that could call into question the legitimacy of the administration itself. Attorney General Jeff Sessions — an early and vocal Trump campaign surrogate — has already recused himself from any decisions regarding this matter because he was caught lying under oath about his contacts with the Russian ambassador to the United States during the campaign. The decision now rests with the deputy attorney general, another Trump appointee who serves at the pleasure of the president.
President Trump has repeatedly claimed the now-confirmed FBI investigation is a witch-hunt pushed by Democrats bitter over their defeat and the intelligence community that is trying to undermine his presidency. It is simply impossible for any Trump political appointee to claim there is no conflict of interest present.
But even if there were no conflict, there are clearly extraordinary circumstances that go beyond the remarkable nature of the underlying allegation of potential collusion with a hostile foreign power to steal an election. Senior Trump administration officials, including the president himself, have ignored the wall between the White House and top law enforcement officials and prosecutors, raising the specter of political interference in their investigations. Appointing a special counsel, however, would help ensure an investigation free of political intrusion.
Acts of attempted political interference are already well documented in the Trump White House. For instance, the Trump administration has admitted that White House chief of staff Reince Priebus asked both FBI Director Comey and Deputy Director Andrew McCabe to make public statements favorable to the administration about the nature of the FBI’s investigation into the Trump campaign’s contacts with Russia, an investigation that the FBI had not at that time publicly confirmed. And President Trump recently directly contacted the U.S. Attorney for the Southern District of New York, Preet Bharara, before firing him, reversing his earlier decision to keep Bharara in his job. It was later reported that Bharara was investigating Trump’s secretary of Health and Human Services for potential insider trading.
These actions violate decades-old restrictions on White House communications with senior law enforcement officials or prosecutors designed to prevent even the appearance of political interference. Trump has no respect for these or other norms governing the actions of his administration.
During Comey’s testimony to Congress about Russia’s actions during the election, the American people were confronted with the surreal experience of the president’s official government Twitter feed providing live commentary on the testimony. Most of this commentary was false or misleading. The public interest demands a truly independent investigation of the Trump campaign’s connections to Russia’s attack on our democracy, free from Trump’s attempts to deceive the American people.
The criteria for appointing a special counsel have clearly been met: an investigation is ongoing, there is an obvious conflict of interest, this is an extraordinary situation, and there is a genuine public interest. The case for a special counsel is a slam-dunk.