News broke Monday night that the Justice Department may be considering — at the request of congressional Republicans — the appointment of a second special counsel to look into alleged wrongdoing by the Clinton Foundation and the controversial sale of a uranium company to Russia. This understandably set off alarm bells over the specter of federal prosecutors being directed by their political superiors to pursue political opponents for political reasons. If that were to happen, it would be a profoundly troubling moment for the rule of law in the United States. But the bells (in this case, at least) may be ringing prematurely. The letter from the Justice Department to the House Judiciary Committee on Monday night actually appears to be a properly measured response to a problematic request from Capitol Hill.
Politically motivated prosecutions are, indeed, a danger. In a celebrated 1940 address that’s still required reading for federal prosecutors today, Attorney General (and later Supreme Court Justice) Robert Jackson identified the Justice Department’s ability to “choose [its] defendants” as “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” Suggesting that in “times of hysteria,” political groups, “often from the best of motives, cry for the scalps of individuals or groups because they do not like their views,” Jackson warned that, if federal prosecutors were not especially diligent to avoid the appearance of such biases, “law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group.”
As Jackson explained, such prosecutions are doubly offensive: Not only do they wrongly jeopardize the liberty of those brought up on charges for inappropriate political reasons, but they also risk undermining — perhaps fatally — the broader perception of fairness and impartiality on which the legitimacy of our criminal justice system necessarily rests. Thus, even if the politics of the moment actually support the criminalization of partisan differences, government lawyers have an obligation to play the long game, not just for today’s defendants but for tomorrow’s victims.
It’s impossible to not think back to Jackson’s warning in considering the growing requests from congressional Republicans — and plenty of outside voices — that the Justice Department find a way to “lock her up,” and to investigate Hillary Clinton, the Clinton Foundation, and anyone related thereto for anything that might plausibly (or, as in the case of the Canadian mining company Uranium One and its sale to Russia’s nuclear energy agency during the Obama administration, implausibly) lead to criminal charges. Despite the superficial parallelism of having a “Clinton” special counsel to go along with Robert S. Mueller III’s ongoing (and indictment-generating) investigation into collusion between the Trump campaign and Russian interests, it should be obvious that there’s a world of difference between a government investigating itself and a government using its prosecutorial power to go after its political opponents. The former is always going to be necessary but awkward; the latter is the stuff of banana republics.
A careful reading of the letter released Monday, however, shows that it might be Congress, not the Justice Department, that’s really in danger of forgetting about the damage politically motivated prosecutions could do. Assistant Attorney General Stephen E. Boyd wrote it in response to written requests from House Judiciary Committee Chairman Robert Goodlatte (R-Va.) and several of his colleagues. And at first blush, the document does seem alarming, as did the initial wave of headlines about it. But on closer inspection, Monday’s letter promises nothing more than that senior federal prosecutors within the Justice Department will “evaluate certain issues raised” by Republicans and “will make recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation require further resources, or whether any matters merit the appointment of a Special Counsel.”
In a few more (and more pleasant) words, the basic but undeniable gist of the communique is that the Justice Department will look into the matter, period.
To be sure, such a letter is hardly normal. Among other things, there was no need for Boyd to go out of his way to raise the specter of a second special counsel (even if congressional Republicans had expressly sought such a move); the letter was far more verbose than what should have been necessary to convey the same point; and the text is rather unclear about the specific role that Attorney General Jeff Sessions, who has promised to recuse himself from most matters involving the 2016 campaign, will play in such discussions.
But these are not normal times. With Sessions due to testify before Goodlatte’s own committee later Tuesday morning, increasing pressure coming from the White House and the continuing Sword of Damocles hanging over the attorney general’s job security, it’s easy to see why the requests from congressional Republicans elicited more than a standard “we’ll look into it” reply — and why that reply came when it did.
Those already critical of the administration have devoted a fair amount of energy to identifying all of the flaws in how the Justice Department responded compared to its predecessors, and they’re not necessarily wrong. But for perhaps the first time in 2017, I dare say that, if nothing else, Robert Jackson would have approved of the Justice Department’s response.