Fact check: would a Special Counsel or Special Prosecutor save the Capitol attack investigation?

Now that Senate Republicans have killed what would have been a bipartisan commission to investigate the January 6th Capitol attack, numerous people online are calling for a Special Counsel or Special Prosecutor to be put in charge of the investigation. But is this even really a thing in this instance? Let’s fact check this.

The people calling for a Special Counsel are doing so based on a number of false presumptions and widespread confusion. For instance, they mistakenly think that the congressional probe into the Capitol attack is dead, when in reality it’ll merely be run by the select committee that Speaker Pelosi is about to appoint. They also appear to be unaware that a Special Counsel handles criminal investigations, whereas congressional investigations are by definition not criminal investigations.

In addition, those calling for a Special Counsel appear to be unaware that the DOJ is already running a full scale criminal investigation into the Capitol attack, as evidenced by the hundreds of arrests that have already taken place. They’re also unaware that a Special Counsel is only appointed when the DOJ has some kind of internal conflict of interest that would prevent it from being able to run the investigation itself. And they seem to mistakenly think that a Special Counsel has magical powers that the DOJ doesn’t have, which is not the case.

So no, a Special Counsel is not going to take the place of the congressional probe, both because that’s not what a Special Counsel is, and because there is still going to be a congressional probe. And no, a Special Counsel is not going to take the place of the DOJ criminal probe, unless some unexpected internal conflict of interest arrives. Nor would a Special Counsel change anything about how the Capitol attack investigation is going to play out.

Part of the confusion here is that the media is doing far too little to make the public aware that a 1/6 select committee is just around the corner, and that the DOJ’s ongoing prosecution of the Capitol attackers is by default also a criminal investigation into those who incited the attack.

The other part of the confusion is that far too many liberal Twitter pundits are promoting the notion of a Special Counsel or Special Prosecutor as if it were a magic wand cure-all to replace the congressional probe and supercharge the DOJ probe, either without knowing or without caring that it’s not how anything works.

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