THE ENIGMA OF SPECIAL COUNSEL BY T.S. KHANNA, JUNE 15, 2018

FOUNDATION FOR  BETTER GOVERNMENT

THE ENIGMA OF SPECIAL COUNSEL
       By T.S. Khanna, June 15, 2018.

In the 1970s, following Watergate case (Nixon), Congress adopted the Independent Counsel Act (ICA) that created the position of a Special Counsel to be appointed by the Attorney General, Department of Justice (DOJ), for independent investigation of cases like the Watergate.

Under the ICA, the Iran-Contra case (Reagan) was investigated by Lawrence Walsh.

In 1988, the Supreme Court upheld the legality of the ICA.   However, prior to June 30, 1999, the sunset date for the ICA, additional regulations were included in the Act to empower the DOJ with full control over the Special Counsel.  The Special Counsel, Ken Starr, investigated the Whitewater-Clinton-Lewinsky case under the oversight of the DOJ at a cost of $ 52 million to the tax-payers.

In 2017, Robert Mueller was appointed to investigate  President's Russian Collusion case.  He has already spent close to $ 18 million.

It may be noted that millions of taxpayers' dollars have been spent by the Special Counsels without any commensurate benefit to the taxpayers.

Although,  the ICA passed by Congress has been upheld by the Supreme Court, the legitimacy of the special counsel's position cannot be affirmed by the logic of common sense.   It is against the principle of good administration.   There are some issues.

The issues:
1.  Can an employee of an organization be empowered by one of its departments to investigate the       Chief Executive of the organization?
2.  Should the Chief Executive not take a timely action  to stop such investigation that may endanger his position?  If he does not protect himself from the perceived possible harm, how can he be expected to protect the organization?  What kind of image of himself should he project?

The U.S. Constitution designates the President as the Chief Executive of the Federal Administration.  All federal employees serve at the President's direction and pleasure.  How can the authority given  to the Attorney General to appoint a special counsel to investigate the President be constitutionally justified?

If the President does not take a timely action to stop the investigation against himself, would it not raise doubt about his ability to protect the nation?

Common sense logic gives clear answers: The Attorney General cannot have the constitutional authority to appoint a Special Counsel to investigate president.   President has the constitutional power to stop such investigation and must do so in the public interest.  President cannot be accused for obstruction of justice when he instructs, directs or fires any employee of the Federal Administration as he considers best in his judgment (as discussed earlier elsewhere in the blog).  He has constitutionsl responsibility and authority to do so.

However, in democracy, no one is considered above the law.  To keep control over  President and Executive Branch, the Constitution empowers Congress to oversee the Executive.  So, logically, any investigation about president or DOJ must be initiated by congress and placed under the direct control of Congress, independent of the Executive.  The President and the DOJ must not then interfere in the operations of the investigation conducted by Congress.

We invite readers' comments on this issue.