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Opinion Democrats demanding a special prosecutor should be careful what they wish for

Special prosecutor Kenneth Starr testifies before the House impeachment hearings on President Bill Clinton in 1998. (Ray Lustig/The Washington Post)

The most famous special prosecutor remains the first one: Archibald Cox of Watergate fame. After Cox got sideways with President Richard Nixon in 1973, the president ordered Cox fired, which led to the "Saturday Night Massacre" and then to Leon Jaworski, and then to . . . well, you remember.

Now, though, Democrats are lined up demanding a special prosecutor into Russia’s interference with our election. They may have visions of Cox and Jaworski dancing in their heads, but they should be careful what they wish for. Democrats assume only Republican oxen will get gored by a special prosecutor, but the record suggests they would get caught up too.

After Watergate, Congress got into the "special prosecutors" business, passing the Ethics in Government Act of 1978 to create the office of the independent counsel. But Capitol Hill soon found that special prosecutors' investigations tend to expand beyond their original brief. After more than a dozen wild rides that included Lawrence Walsh's endless inquiry into Iran-contra and Ken Starr's work that began with Whitewater and later metastasized into Monica-land, Congress let the office and its procedures to lapse in 1999. There is no "law" governing special prosecutors today despite what you may have heard some elected officials say on air in recent weeks. The attorney general can name a special prosecutor if he wants (or the deputy attorney general if Jeff Sessions's recusal extends to even considering whether a special prosecutor is needed). But if either Sessions or Rod Rosenstein, Trump's nominee for deputy attorney general, declares the need for a special prosecutor, the key will be: What is the "scope of the investigation" with which the special prosecutor is charged?

Republicans routinely demanded special prosecutors in the era of President Barack Obama and Attorneys General Eric H. Holder Jr. and Loretta E. Lynch. There were calls for one to investigate Hillary Clinton's private email server, the Internal Revenue Service's alleged abuse of power regarding "tea party"-named groups, and the "gun walking" scandal known as Fast and Furious. But there were no special prosecutors appointed during the Obama years. The Democrats knew better than to set a seasoned prosecutor with subpoena power loose when political intrigue is afoot.

So I would sound a note of caution to Democrats pounding the lectern for a special prosecutor. Still, if one is to be appointed to look into the election of 2016 and all illegal activity surrounding it, I am in favor of going for the cathartic approach and putting everything on the table.

Let’s be clear: It seems obvious that Russia did in fact meddle with our process and used WikiLeaks to do so. I and other conservatives said as much repeatedly during the election. And if any American cooperated with that “active measures” campaign against us, he, she or they should be prosecuted under the appropriate espionage statutes.

But any special prosecutor appointed to look into the alleged “Russian connection” should also be given a scope of inquiry that includes the handing of the investigation into Clinton’s server, the slow-walking of document delivery to the Congress and the courts concerning Clinton’s administration of the State Department as well as alleged Obama administration leaks of classified information from the first campaign debate forward. I think the abuses at the IRS clearly have a nexus to shenanigans in 2016, so you can even add that to the list of appropriate subjects for the special prosecutor. (Everything is alleged, including Team Trump ties to Russia, until proven or abandoned.)

Of course that special prosecutor will have to look at every application for surveillance,e in connection with either candidate for the presidency made to the Foreign Intelligence Surveillance Court under the Foreign Intelligence Surveillance Act. Long ago I reviewed those applications from the FBI’s counterintelligence pros before they went to the attorney general. Their contents are detailed and usually lengthy, and very classified, and so the new special prosecutor and his or her staff are going to need full FBI background investigations, which argues for a former prosecutor and/or a former federal judge who has already undergone the arduous process of clearance background investigations. That person will also need a reputation as a straight shooter, because when he or she begins to get close to touching Democratic nerves the “politics of personal destruction” will return with a vengeance.

It's certainly possible to find the right person for the job. Back when the independent counsel statute was in effect, I served for a year as clerk to the special panel of three judges who selected the counsel (because my judge, George MacKinnon, was the chair of the panel). When choosing an independent counsel to investigate allegations against Attorney General-designate Edwin Meese (allegations eventually proved false and cleared before Meese's confirmation), the judges debated how to find a lawyer who would move quickly and who would not fall in love with the spotlight. They succeeded when they selected Jacob Stein, who moved efficiently to an end product.

But the point is that special prosecutors are immune from any constraint. You may get a Stein, or you may get a Walsh. Either way, special prosecutors go where they want and when they want. Buyers beware.

If Sessions or Rosenstein decide on a special prosecutor, every big newspaper and network is going to have to assign a few reporters to a new beat — one we ought to brand with hashtag #PutinsBigWin to describe its impact.

Democrats and Republicans react to comments by Rep. Darrell Issa (R-Calif.) that a special prosecutor should investigate Russian meddling in the 2016 election. (Video: Bastien Inzaurralde/The Washington Post, Photo: Jabin Botsford/The Washington Post)

The new president isn’t going to unleash the hounds on just his campaign. If the hunt is to be had, everyone connected to the election is the fox. The old KGB colonel at the top of the Kremlin must be smiling indeed. His campaign against the legitimacy of everyone and everything in American politics is bearing fruit every day.

Read more about this topic:

Robert Kagan: Republicans are becoming Russia’s accomplices

Philip Lacovara and Lawrence Robbin: Federal prosecutors have brought charges in cases far less serious than Sessions’s

Dana Milbank: Everything you need to know about Trump and Russia