What with all of the talk about establishing an Independent Counsel to investigate the supposed link between the Trump campaign and the Russian government, I assumed that such a thing exists. It only makes sense that if all the major news outlets are reporting about it, it MUST exist, right?

WRONG.

I remember the Office of Independent Counsel (remember Ken Starr?) from the investigation of Bill Clinton, even though – until recently – very little has been said about it. I don’t think Democrats like the Independent Counsel, at least not when a Democrat occupies the Oval Office.

There was an Independent Counsel statute, but it lapsed eighteen years ago.

I love Andrew C. McCarthy, and was glad to read his explanation in today’s post over at PJ Media:

Washington makes knee-jerk calls for independent counsels and special prosecutors because few pols and commentators seem to understand what these terms mean — and, of course, for reasons of both integrity and self-interest, they want to be perceived as desirous of an independent investigation that will get to the truth of whatever public controversy is involved.

To this list of the ill-informed we can now add comedian-turned-talk-show-host Bill Maher and, sadly, Congressman Darrell Issa. Mr. Maher’s savant schtick notwithstanding, it is unsurprising that he does not grasp the legal concepts involved. There isn’t much excuse, though, for Rep. Issa, a longtime House Judiciary Committee fixture. Recently interviewed by Maher about alleged connections between the Putin regime and the Trump campaign, Issa urged resort to “the special prosecutor statute and office.” Assuming he was referring to the independent counsel statute, it lapsed (along with the office created thereunder) some eighteen years ago — Democrats having found it less to their liking when Bill Clinton was caught in its crosshairs.

The independent counsel was replaced by the “United States Department of Justice Office of Special Counsel.” I provide the title in all its prolixity to highlight that the special counsel is not independent. The “special” office is part of the Justice Department and answers to the attorney general — despite Issa’s confusing suggestion (to Maher) that it be invoked so the investigation can be insulated from Attorney General Jeff Sessions, whose prominent Trump campaign role is said to be a conflict of interest.

For those of us who don’t understand why AG Sessions decided to recuse himself, Mr. McCarthy discusses:

Understand: Sessions’ recusal does not change our analysis. Any “special counsel” would still not be independent of the Justice Department. There is currently no basis to appoint one, and nothing from which Sessions needed to recuse himself — I’ll have more to say about that in coming days. If ever appointed, though, such a special counsel would simply meet with whomever Sessions designates to act as AG in any manners from which Sessions is recused (presumably, the deputy AG).

As a matter of constitutional law, we cannot have a truly independent counsel — as in: independent of the executive branch. The reasons for this were memorably explained in Justice Scalia’s prescient dissent in Morrison v. Olson (1988). Prosecution in our system is an executive responsibility. The Constitution vests all executive power in a single official, the president. Therefore, subordinate executive officials do not have their own power; they are delegated to exercise the president’s power, which is why they all answer to the president and may be fired by the president without cause.

Replacing the lapsed independent counsel’s office with a DOJ “special counsel” was gratuitous. The attorney general already had the power, in cases presenting a conflict of interest, to appoint a prosecutor who is permitted to conduct an investigation outside the normal chain of command, but who still ultimately reports to the attorney general (or the AG’s designee if the AG is recused), and who still may be fired by the president at any time. That is all a “special counsel” is.

There is no way around it. There is no branch of government that is independent from the three that were set out in the Constitution, and prosecution is a function of the Executive Branch. It’s that simple.