Published by The Lawfare Institute
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The New York Times is calling for a "special prosecutor" to investigate the Russian influence on the elections. That's the right instinct, but, because words matter I wanted to offer a small "nit." The Times doesn't want a special prosecutor -- that's what we called Independent Counsel under a now-expired law. They were completely independent of the Department of Justice and they were fundamentally a bad idea. [For those who are interested in why I think so the short answer is that independence created monomania and also structural weakness -- the worst of both worlds.]
Instead, to create an independent investigation and to generate as much confidence as possible in the ultimate result, the Attorney General should exercise his regulatory authority to appoint a "special counsel" to lead the inquiry. As historical practice and precedent make clear, the special counsel may be appointed from within the current ranks of the Department of Justice or, at the Attorney General's discretion, from outside the Federal government. The final step would be for the AG to select to lead the inquiry a prominent Republican -- perhaps one who is not affiliated with the #NeverTrump wing of the party. And, as I said earlier, we might also consider convening a special grand jury, which could provide the American public with a report on its investigation. The ideal preference, of course, would be for this all to run in parallel with a Congressional investigation ... but that may be too much to ask for.