Last week, Bob Goodlatte (R-Va.), Chairman of the House Judiciary Committee, and nineteen of the other twenty-three Republican members of the House Judiciary Committee, sent a letter to Attorney General Jeff Sessions requesting that he appoint a second special counsel (in addition to Robert Mueller). The list of things the Republicans want investigated is long, running to fourteen items, including Hillary Clinton’s e-mails and the investigation thereof, former Attorney General Loretta Lynch, former FBI Director James Comey, Mr. Trump’s post-election claims “that he was wiretapped by the previous administration,” and – this one is particularly rich – “inappropriate collusion between the DNC and the Clinton campaign to undermine Senator Bernie Sanders’ presidential campaign.”
This is, of course, not a serious document written by or for serious people. It is instead a grab-bag compilation of pre- and post-election conspiracy theories and Trump Administration talking points aimed at deflecting attention from the Mueller investigation. The letter is unaccompanied by any evidence that the events listed actually happened, or any legal argument that, if they did, the alleged misconduct amounted to criminal offenses.
For example, the first two items on the list — that former AG Lynch encouraged then-FBI Director Comey to “mislead the American people” by insisting that he refer to the Clinton investigation as a “matter,” and the “shadow cast over our system of justice concerning Secretary Clinton and her involvement in mishandling classified information” — are ludicrous as action items in a letter seeking a criminal investigation. If Ms. Lynch did make this request to Mr. Comey, it would indicate that she was trying to minimize the political damage of the FBI probe to Secretary Clinton, but that is not a crime. And federal prosecutors, whether regular or special, do not investigate non-crimes. Nor does the Department of Justice investigate “shadows” over justice systems.
The letter is doubly frivolous in that few, if any, of the matters listed — even if they happened and were colorably criminal — would require a “special counsel.”
If Mr. Trump suspects he was “wiretapped” by the FBI, the NSA, the CIA, or any other federal agency, all he has to do is order the appointed heads of those agencies to inquire of their own subordinates. If former Department of Justice officials are alleged to have behaved improperly, that would be a matter for the Department’s own Inspector General. The need for a “special counsel” would arise only if politically appointed senior DOJ officials would have conflicts of interest in overseeing an investigation that could not be dealt with by individual recusal. The only items on the list that might arguably fall into this category are the two or three proposing investigation into the foreign connections of the Clinton Foundation. Such an investigation, though not presenting a conflict of interest under DOJ regulations, might call for a special counsel if the Attorney General concluded that investigating his boss’s former political adversary would present an appearance of impropriety.
But that, of course, is the most troublesome part of the Goodlatte letter. Because — absent the most compelling evidence of criminality — such an investigation would be improper. In the United States, successful candidates for political office do not use their newly-acquired powers to prosecute their defeated opponents. That is a key marker of incipient authoritarianism. The fact that twenty Republican lawmakers – virtually all of whom are lawyers – do not understand this most elemental of democratic political norms is profoundly disheartening.
It should also be a reality check for those hopeful that, given compelling evidence of impeachable conduct, Congress will act to remove Mr. Trump. The sad fact is that, at least on the House side, Congress is not performing the role assigned it by the Framers of providing an institutional check on presidential misbehavior. Indeed, particularly on the House side, congressmen are actively enabling Mr. Trump’s misbehavior and thus actively abetting the steady degradation of the constitutional norms that have made the country work. The Goodlatte letter represents a new low in this calamitous political degeneracy.
No president can be impeached unless a majority of the House of Representatives endorses that result. Sadly, I think it fair to conclude that no kind or degree of deviancy or outrageousness will move a Republican House to impeach him, at least so long as Mr. Trump retains the loyalty of his Republican base. And Mr. Trump continues to be supported by more than 80% of Republican voters.