For the first time in American history, there are three special counsels who have been appointed by two Attorneys General across two administrations, the Trump administration and now the Biden administration: John Durham, appointed by former Attorney General William Barr in 2020, and Jack Smith and Robert Hurt, appointed by current Attorney General Merrick Garland in 2022, respectively.
That comes atop the appointment of former Special Counsel Robert Mueller in 2017 by former Deputy Attorney General Rod Rosenstein, who did not finish his investigation of former President Donald Trump until 2019 and—to the surprise of many except constitutional attorney and talk show host Mark Levin who warned of this—did not bring any charges against Trump for either conspiring with Russia to hack the DNC and put the emails onto Wikileaks (evidence was “not sufficient”), or for obstruction of justice for firing former FBI Director James Comey or considering firing Mueller himself.
Because he couldn’t. Sitting presidents cannot be prosecuted. Neither by special counsels, U.S. attorneys nor the Attorney General himself. Period. And Mueller told us why, citing a 2000 memorandum by the Justice Department’s Office of Legal Counsel, “A Sitting President’s Amenability to Indictment and Criminal Prosecution”.
That memorandum stated, “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” It was following up on a 1973 memorandum from the Justice Department that stated the same thing. Today, nothing’s changed.
In other words, Trump was never going to be frog marched out of the White House—former Obama administration officials’ fantasies to the contrary notwithstanding—and neither will Biden. Bush was never in any legal jeopardy either, even though they all had special counsels.
Trump had one while being a sitting president from 2017 to 2019, and so does Biden now, starting now. Bush had one, too, Special Counsel Patrick Fitzgerald, from 2003 to 2007. Obama did not.
So, why are there special counsels if they have no power to prosecute the president?
Because we, as a nation, in a bid for partisan supremacy, are absolutely weakening the constitutional role of the Presidency under Article II of the Constitution.
In fact, the framers of the Constitution explicitly created the unitary executive under Article II to prevent a situation akin to the old Roman Republic, which had two consuls during peacetime. In the Federalist No. 70, Alexander Hamilton argued that the new Constitution prohibited executive by committee, and made the case for why we only have one president at a time for very good reason, writing, “Wherever two or more persons are engaged in any common enterprise or pursuit, there is always danger of difference of opinion. If it be a public trust or office, in which they are clothed with equal dignity and authority, there is peculiar danger of personal emulation and even animosity. From either, and especially from all these causes, the most bitter dissensions are apt to spring.”
Leading to what? Hamilton warned, “Whenever these happen, they lessen the respectability, weaken the authority, and distract the plans and operation of those whom they divide. If they should unfortunately assail the supreme executive magistracy of a country, consisting of a plurality of persons, they might impede or frustrate the most important measures of the government, in the most critical emergencies of the state. And what is still worse, they might split the community into the most violent and irreconcilable factions, adhering differently to the different individuals who composed the magistracy.”
And yet, here we are. Three active special counsels. Five in the past two decades. Three out of the last four presidencies, all preventing the unitary executive, the President, from fulfilling his obligation to faithfully execute the laws, simply because once a special counsel is appointed, for all intents and purposes, that special counsel is the Attorney General. It’s a Sword of Damacles.
Ironically, special counsels report to the Attorney General still, and can be removed by the Attorney General. This is to maintain the “appearance” of the unitary executive, if not the fact. It’s still a farce. An unconstitutional farce.
And it’s completely unnecessary. Article II, Section 4 already provides for the impeachment and removal of presidents and other executive branch members for “high crimes and misdemeanors” by Congress.
So, if there needs to be an investigation of Biden, it should be done by Congress. For example, when it comes to investigating a violation of the Espionage Act, the House and Senate Intelligence and Judiciary committees need access to and should subpoena the classified Biden documents kept after he left office in order to determine if any of them match, for example, Hunter Biden’s stellar assessment of the geopolitical and economic situation in Ukraine he used to get hired by Burisma Holdings.
And if it does, then Attorney General Merrick Garland should declassify those documents and present them to Congress for proper consideration. And if not, end the farce. Congress never established a law governing special counsels in the first place. It’s time to get rid of them and restore constitutional order—before it’s too late.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
