The news that Attorney General Jeff Sessions is mulling a special counsel to investigate a series of largely fake Clinton scandals that Republicans have been pushing puts us in potentially dangerous territory.
President Donald Trump and his allies have been embroidering this alternative scandal reality not just to distract from the Russia investigation, but also possibly to lay the groundwork to shut down that probe. Sessions—wittingly or not—may now be putting the nation’s investigative machinery to work in legitimizing those efforts.
That is not the only interpretation of these latest developments. There are less menacing interpretations. But even if those are right, they raise possible permutations that are just as worrisome.
The latest news comes in a letter that the Justice Department sent to congressional Republicans, which states that Sessions has “directed senior federal prosecutors to evaluate” issues related to Republicans’ previous request for the appointment of a special counsel. Those Republicans, the letter notes, have demanded an investigation into “various matters” involving an alleged relationship between the sale of Uranium One shares to Russia and donations made to the Clinton Foundation. The department’s letter in response says it will determine whether these “matters merit the appointment of a special counsel.”
The Post fact-checking team has already demonstrated why the Uranium One “scandal” is thoroughly bogus. Making this worse, as the Post and New York Times point out, this Justice Department move looks like a response not just to Congressional Republicans, but also to President Trump’s recent criticism of the department for failing to probe these trumped-up scandals, which happen to involve his chief political enemy, raising questions about the department’s independence from political interference by Trump.
In a smart thread, Lawfare Blog founder Benjamin Wittes offers a nuanced interpretation of the department’s move. Wittes agrees that “dangling the possibility of a special prosecutor to investigate the president’s opponent” could amount to an “egregious abuse of power.” But Wittes also suggests this could be a prelude to a formal determination that these charges by Trump and Republicans don’t form the basis for a special counsel. If so, Sessions—or deputy Rod Rosenstein—could dismiss the matter, and say he is “acting on the presumably unanimous recommendation of his senior career prosecutors.”
But even if this turns out to be right, there is still cause for worry about what precedents this could set and where this is all going. First, as Matthew Miller, a former Justice Department spokesman, told me Tuesday morning, the manner in which the department did this is itself problematic. “Whether Sessions ever appoints a special counsel or not, the letter endorses the idea that there might be something here to look at,” Miller said.
“There is a way to write this letter to say, ‘we will review the issues you’ve raised, and take whatever steps are appropriate,’” Miller said. By contrast, he noted, the letter goes out of its way to say that “prosecutors will decide what steps to take, including the possibility of a special counsel. It affirmatively raises that idea.” Miller noted that the letter effectively “endorses the idea that it may be okay for the president to be telling the attorney general what to investigate.”
The reason this matters: It could become the latest act of enabling Trump in his ongoing obliteration of norms and institutional lines. Trump demanded the loyalty of his FBI director, then fired him when that loyalty was not forthcoming, admitting this was due to anger over the Russia investigation. He raged at his attorney general for failing to protect him from that probe, and has seriously mulled an effort to remove Special Counsel Robert S. Mueller. Congressional Republicans have not done nearly enough to signal that such a move would be met with a forceful response. Yet those same Republicans are actively helping Trump muddy the waters around that probe, by launching their own investigations into the bogus Clinton scandals, and, now, by prevailing on the attorney general to go too far in using prosecutorial resources to validate those story lines.
It’s also worth entertaining what might happen even if the Justice Department concludes that the fake scandals don’t merit a special counsel. As I’ve argued, Trump’s media allies are actively trying to goad him into going full authoritarian against the Mueller probe, by using these invented story lines to cast Mueller and the investigation as corrupt and illegitimate, and by hammering the narrative that this has created a crisis in this country that leaves Trump no alternative but to close it down.
We don’t know if Trump will end up going full authoritarian or not. But if the department does decline to go the special counsel route, is there any reason to believe Trump would accept this? Instead, it may well torque Trump into a state of rage and grievance over how unfair and illegitimate it is that Clinton isn’t being probed, while his campaign continues to be targeted by an investigation that he claims is nothing but a hoax. That’s exactly what his allies hope will tip him into acting against Mueller. It’s hard to see how this ends well.
* REPUBLICANS FEAR A ROY MOORE VICTORY: The New York Times reports that top Republicans are mulling a scenario in which Roy Moore is expelled by fellow senators and replaced with another Republican by the Alabama governor. But:
“Should Mr. Moore prevail, Republicans believe the debate over whether he should be allowed to take and keep his seat could drag on for months. The Republicans’ legislative agenda . . . could be swallowed in a maelstrom of controversy around Mr. Moore and his fitness to serve. The implications for the 2018 elections could be even graver, Republicans fear, with several party strategists predicting that Democrats would brand them as the party of child sex abuse.”
It would not be surprising if Republicans decide it’s worth enduring all this to keep the seat, however.