The real reason behind Sessions' special counsel decision
Newspaper and television headlines are blunt instruments that leave little room for nuance. Throw in the anti-Trump bias and it’s no surprise that nearly all media followed the same simplistic thinking to describe Attorney General Jeff Sessions’ decision on whether to appoint a second special counsel.
His answer was “no,” the chorus declared, case closed. Par for its partisan course, The New York Times twisted the knife, saying “Sessions Spurns GOP.”
Maybe, maybe not. The truth is that Sessions’ decision is far more complex than reports suggest. In fact, the good news is that the process he set in motion likely will result in the appointment of a second special counsel to probe the Justice Department and the FBI. The only question is timing.
I say that because Sessions wants first to determine whether the situation meets the legal standard of “extraordinary circumstances” involving conflicts of interest that would allow him to move an investigation outside normal channels. I believe the standard will be easy to meet because there are numerous smoking guns showing that the 2016 investigations into both Donald Trump and Hillary Clinton were rigged by top government officials.
We already know about many of those smoking guns: The prominent if not exclusive use of the Democratic-funded Russian dossier in the FISA court application to spy on Trump campaign associate Carter Page; the politicized talk by FBI agents of an “insurance plan” in case Trump won; and the many irregularities in the Clinton email probe, including the fact that the letter exonerating her was written before she and most witnesses were interviewed.
Then there are the suspicions surrounding Andrew McCabe, the former deputy director of the FBI fired for reportedly lying to investigators.
Sessions, of course, is not the most articulate man on the planet, so it does take time and patience to cut through his fog and understand the intent behind the layered plan he establishes.
Rather than simply saying yes or no to the request from GOP lawmakers for a new special counsel, he unfolds his response in a densely written, four-page letter. On page two, he gets to the first relevant fact: a reminder that he recently asked the inspector general of the Justice Department, the well-respected Michael Horowitz, to review whether any laws were broken or policies violated when officials made their request to spy on Page.
It takes Sessions another full page to come to his second reminder: that last November, he asked unnamed senior prosecutors to “evaluate certain issues” flagged by Congress in the Clinton and Trump probes.
These prosecutors, he says, have a wide berth to see which matters, if any, should be investigated again, and whether to recommend the appointment of a special counsel.
Only then, for the first time, does Sessions reveal that the head of that team is the US attorney in Utah, John Huber. He notes that Huber twice was confirmed unanimously by the Senate, once in 2015 and again in 2017, and has received numerous commendations.
In plain English, Huber was first appointed by Barack Obama, and then by Trump, meaning he is not a partisan warrior.
Sessions’ emphasis on Huber’s nonpolitical history could be boilerplate assurance, but in the context it means something more. Given the partisan divide over special counsel Robert Mueller’s investigation of Trump, Sessions is trying to avoid a similar fate if Huber recommends a second special counsel.
By stressing Huber’s credibility, I suspect the attorney general is laying the public and political groundwork for such a decision.
It is also noteworthy that Sessions says Huber will work outside Washington, meaning he won’t be part of the swamp, but will partner with Inspector General Horowitz. That gives the probe a double-barreled, clean-hands approach and the widest possible range of power to subpoena both current and former officials, as well as prosecute them. Sessions also says he regularly receives updates on the probes, meaning he is taking personal responsibility for the outcome.
While many Republicans and Trump supporters are unhappy with the decision, they should hold their fire.
Although I also believe a second special counsel is necessary to get to the truth about suspect conduct by former FBI Director James Comey and former Attorney General Loretta Lynch, I am reasonably confident Sessions eventually will come to that conclusion.
And when he does, he will reach it on the basis of work done by proven professionals, Horowitz and Huber. Democrats will still kick and scream, but fair-minded Americans will likely trust the result.
My one reservation is time. If Horowitz and Huber move quickly — say, in three months or so — and discover there is a need for a special counsel, then the delay will have been worthwhile.
But if the preliminary assessment drags on for six, seven, eight months or a year, that would be too late to be of any real value, even if a special counsel follows. Just as the Mueller probe needs to come to a conclusion, this second probe cannot be allowed to drag on endlessly.
The two clouds hanging over Washington — whether Trump’s campaign colluded with Russia during the election and the conduct of government officials who apparently abused their powers to try to defeat him and elect Clinton — must be resolved as soon as possible.
No matter what he eventually decides, Sessions must move quickly to reveal the facts and bring clear accountability to anyone found culpable. Otherwise, trust in federal law enforcement will continue to erode.
The clock is ticking.