HORIST: There should never be another Special Counsel like Robert Mueller

For all his good intentions, Dr. Frankenstein created a monster that ran amok at great cost to the local peasants.  That could be an analogy for special prosecutors in general — and Robert Mueller specifically.  Mueller could be the bad example that reveals the problem with these super-sized steroid-empowered prosecutors.

Specials counsels or prosecutors – a distinction without a difference – have been appointed to investigate cases where the traditional prosecutorial offices are inadequate or potentially compromised.  They are sometimes referred to as “independent counsel” in the theory that they, themselves, are not compromised or influenced by personal, professional or political biases.  They are said to be impartial in terms of the issues.

Unfortunately, the reality falls short of the theory.  No one is completely independent of their own beliefs.  Perhaps the greatest problem with these super prosecutors is the nature of the beast, itself.  Prosecutors fame and fortune depend on one thing – putting people in jail.  They do not exist to judge the guilt or innocence of people in an objective manner.  

They operate contrary to our legal tradition of innocent until proven guilty.  It is their job to prove guilt at virtually any cost … period.  How many times have you heard prosecutors praised for losing a case?  

Their reputation, career advancement, financial reward and maybe even an election to public office all depend on the number and importance of cases in which they convict individuals or entities – rightfully or wrongfully.  Remember, many of those whose convictions for murder, rape and other heinous crimes were overturned because they were later proven to be innocent.  Yet, they were prosecuted and thrown in the hoosegow – a few may have been executed — by a … prosecutor.  Despite the obvious lack of evidence, the prosecutor was able to construct a false narrative and convince a jury that the innocent guy or gal was the culprit.  That happens far too often.

There is such a thing as prosecutorial abuse – more than we could ever know — but we have seen the tip of that iceberg on occasion.  You know, in those cases where prosecutors concealed exculpating evidence that would suggest the person was not guilty.  Or, they refused to share all their evidence or witnesses with the defense prior to the trial.

Prosecutors have extraordinary powers with which no mere citizen, even a wealthy one, can compete.  Even those local prosecutors you see hanging around the courthouse in small towns have the resources and the ability to take down almost anyone.  

They have what is called “prosecutorial discretion.”  This means that they can choose to prosecute a person or not based on nothing more than their personal decision.  This is an area where we see the greatest political abuses.  They “go after” political adversaries and “protect” political allies.  This is the reason we do not see prosecutions of rogue or corrupt police.  This why even blatant election fraud goes unadjudicated.  When was the last time you saw a prosecutor get prosecuted?

When a prosecutor wants to “go after” a person, they have extraordinary powers.  They have an unlimited budget and a unique knowledge of the highly technical legal system.   Even in the most unjust cases, unethical prosecutors can destroy people’s reputations, cost them their careers — and even their marriages — and leave them in financial ruin. 

Prosecutors can indict people for the flimsiest of reasons – without even sound legal justification.  They can choose to indict on their own authority.  Even if they put the case before a grand jury, the rules are rigged in favor of the prosecutor.  

In a grand jury, only the prosecutor is allowed to present the case.  The accused will be present, but may not be represented by an attorney, may not present favorable witnesses and may not question the prosecutors.  It is such a bad system that the United States is one of the only nations that has grand juries.  It is so one-sided, that the common joke – and not a very funny one, at that – is that a prosecutor can get a grand jury to indict a ham sandwich.

Prosecutors have the power to plea bargain.  That means that they can refuse to prosecute a criminal if that person will “flip” on a more important person they want to send to jail – someone whose conviction will look better on their resume.  In these cases, the rule-of-law takes a vacation.  

In one of the more notorious cases, Sammy Gravano served less than one year in jail after admitting to 19 murders because of a plea agreement in which he flipped on Mafia boss John Gotti.  Even if one argues that a greater public good was served – and that is questionable — the power of prosecutors to summarily excuse even heinous crimes is disturbing.

The other problem with plea bargaining is that it encourages people to lie in order to avoid justice for their own crimes.  More than one innocent person has suffered false imprisonment on the lies of such accusers.  It is said of the American system of justice that it is better to have 10 guilty persons go free than to imprison one innocent person.  Prosecutors undermine that sentiment.

The ramification of having such enormous powers with very limited checks on those powers is that prosecutors can, and are, corrupted.  They are living examples of the old adage that power corrupts, and absolute power corrupts absolutely.

Now if your everyday local prosecutor has all these powers, imagine the power given to Robert Mueller.  In pursuit of his prey, he has unprecedented financial resources – having already spent tens of millions of dollars.  He can assemble a large team of prosecutors, accountants and investigators.  Even billionaires would be unable to match those resources.  Individuals who flip in a plea agreement often do so because the simply cannot afford to defend themselves.

When it comes to presidential investigations, the appointment of a special prosecutor creates a short circuit in our balance of powers.  Constitutionally, it is the responsibility of the Congress to make the case against a sitting president based on their power to impeach and remove from office.  The special prosecutor is a creature of the Executive Branch but not beholding to the Chief Executive – the President.

The problem with the Mueller investigation is that he was not appointed to respond to a specific “reasonable cause,” but sent on a partisan fishing expedition.  It became an investigation in search of a crime based on political motivations.  Ostensibly, his mission was to uncover the extent and sources of Russian meddling in the 2016 election, including any possible collusion with the campaigns – BOTH campaigns.  Instead, it immediately became a “get Trump” operation – tainted by partisan appointments and selective investigation.

The fact that Mueller may have found a series of unrelated crimes involving Trump associates should not be comforting.  Books have been written explaining how prosecutors, given enough resources, time and motivation, can always find an indictable offense.  This is because many times the offense itself is subjective.

In many ways, special prosecutors are the kangaroos in the kangaroo courts.  It is time that Congress consider the powers of special prosecutors – and prosecutors in general – and to legislatively curb the abuses.

Larry Horist is a conservative activist with an extensive background in economics, public policy and politics. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman, as well as the White House. He has testified as an expert witness before legislative bodies, including the U. S. Congress, and lectured at major colleges and universities. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He can be reached at lph@thomasandjoyce.com.