Why AG Sessions declined to appoint a special counsel
A lot of conservatives are upset that Attorney General Jeff Sessions has declined for now to appoint a special prosecutor to investigate claims of FBI abuses in surveilling the Trump campaign, and in declining to investigate the Uranium One deal, followed by well over a hundred million dollars of donations to Clinton family-controlled charities by parties benefitting from approval of that sale. CNN first broke the story, obtaining a four-page letter that Sessions sent to Senator Grassley, and Representatives Goodlatte and Gowdy, who had requested a special counsel.
Tom Fitton, president of Judicial Watch: (Full disclosure: I am an enthusiastic donor)
Mark Meadows, Chairman of the Freedom Caucus, was no less upset:
So the Obama DOJ can open a legally questionable investigation into the Trump campaign—allegedly based on a campaign volunteer mouthing off at a London bar—but this DOJ can’t appoint a second special counsel after all the troubling documents we’ve seen?— Mark Meadows (@RepMarkMeadows) March 29, 2018
But, for the moment, at least, I see good reason for Sessions to take this position. In the letter, Sessions noted that he has asked the DOJ’s Inspector General Horowitz to investigate these matters, and, in a new disclosure, tasked US Attorney John W. Huber to investigate. Huber serves in Utah, far from the beltway, and was first appointed US Attorney by President Obama, and reappointed by Trump.
First of all, while the IG cannot convene a grand jury and subpoena witnesses outside the DOJ’s employees, Huber can. And the IG can and does make criminal referrals. There is tremendous inside expertise on the DOJ resident in the IG’s organization, meaning that there is no start-up delay and no learning curve in getting to work on abuses. So, with the IG digging up information, and referring it to Huber, further steps, including subpoenas to former DOJ and FBI employees, such as Andrew McCabe and James Comey, can be taken before a grand jury in Utah. Any indictments issued by that grand jury presumably could be tried before a federal jury in Utah, whereas a special counsel would most likely work with courts in the District of Columbia, Virginia, or Maryland, beltway strongholds. Which jury pool would you prefer? The District of Columbia or Utah?
Even more importantly, there is reason to believe that a lot of work already is underway by Huber and his staff. Scott Bixby in The Daily Beast:
Asked when exactly Huber had begun evaluating issues raised by the committees addressed in the letter, Department of Justice spokesperson Sarah Isgur Flores told The Daily Beast only that Huber started “in advance of the Nov. 13th letter.” In that November letter, sent by Assistant Attorney General Stephen Boyd to the House Judiciary Committee, congressional leaders were told that “senior prosecutors” reporting directly to Sessions “will make recommendations as to whether any matters not currently under investigation should be opened.”
Speaking this morning on Fox & Friends, Sara Carter said that IG has already made criminal referrals on FISA abuses, according to her DOJ sources. These presumably would have been referred to Huber.
In other words, knowledgeable and experienced IG investigators are working with an experienced and unimpeachable (Obama-appointed) US Attorney to go after suspected abuses. Appointing a special counsel would necessitate starting all over again, beginning with recruiting staff, and then taking a lot of time to familiarize themselves with the evidence developed to date, and learning about the procedures and rules of the FBI and DOJ.
How many extra months would be required? How much expertise would be lost?
Of course, if worries about the inability of the DOJ to investigate itself prove valid, a special counsel always can be appointed. But let’s wait a little and see what develops out of Salt Lake City. Grand jury testimony is secret, but alert eyes might spot people like Comey, McCabe, Strzok, Page, and others entering the Scott M. Matheson Federal Courthouse in Salt Lake City one of these days.