It’s time to start talking about a Special Counsel

When Republican Senators voted down a bipartisan January 6th commission a couple weeks ago, a number of observers called for a Special Counsel to be appointed instead. This made zero sense, given that the Democrats are going to end up appointing a January 6th committee anyway. It was also gibberish, given that Special Counsels run criminal investigations, not congressional probes, and that the Department of Justice is already running a wide scale January 6th investigation that’s already resulted in hundreds of arrests.

As I explained at the time, there is only a very narrow scenario in which a Special Counsel is appropriate: when the DOJ itself has too much of a conflict of interest to be able to properly investigate a criminal scandal. But as these things sometimes go, now we suddenly have a situation where the Special Counsel statute could very much apply.

This week we all learned that the Trump-era DOJ illegally spied on the personal data of multiple House Democrats and their families. In response the Deputy Attorney General has asked the DOJ Inspector General to launch an investigation. This is a good step. But what happens once the Inspector General issues a report confirming that certain people who still work in the DOJ were a part of the spying scandal? What about perpetrators who no longer work at the DOJ, but have friends who do?

There’s where a Special Counsel comes in. Merrick Garland can appoint an outside prosecutor to take the IG report and use it to criminally prosecute any current and former DOJ officials who participated in this spying scandal. That way, if and when the indictments start flying at people like Bill Barr or Rod Rosenstein, it’s coming from an outside Special Counsel, thus avoiding the awkwardness of the DOJ criminally prosecuting its own recent former leaders.

The appointment of a Special Counsel doesn’t necessarily need to happen immediately. The DOJ Inspector General has proven himself to be thorough and fair in previous investigations. But once his work is done, it’ll be difficult to imagine the DOJ prosecuting itself in this scandal. At the least, we’re at a point where we should be talking about a Special Counsel.

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