WASHINGTON – Conservative legal experts are sharply divided over whether it is time to demand an independent counsel to investigate Hillary Clinton’s email scandal, now that President Obama has officially endorsed her for president.
Many question whether the endorsement creates a huge conflict of interest for the administration because those investigating her, Attorney General Loretta Lynch and FBI Director James Comey, both report to the president.
In an email to supporters on Thursday, Obama declared, “I can’t wait to get out there and campaign for her.” At the same time, White House press secretary Josh Earnest insisted that the president’s endorsement will not “sway” the FBI, which, the spokesman acknowledged, was conducting a “criminal” investigation.
That’s left Washington abuzz with talk of whether an independent counsel is needed to take over the federal investigation into Clinton’s emails, to prevent any possibility of Obama swaying the investigation.
Fox News Senior Judicial Analyst Judge Andrew Napolitano insists the answer is “yes.”
But one of the nation’s top legal minds, former federal prosecutor Andrew McCarthy, just as emphatically tells WND, “no.”
McCarthy made the case that an independent counsel would be both impractical and unconstitutional, and cited no less a legal authority than the late Supreme Court Justice Antonin Scalia, for reasons outlined below.
Napolitano’s case was outlined as the top story on “The Kelly File” Thursday evening, as legal experts asked how the administration could both support Clinton’s campaign and investigate her possible criminality at the same time.
Fox reported that a source approached the judge with concerns expressed by prosecutors and FBI agents on the case about a conflict an endorsement would create, and that Napolitano’s information came from “career FBI agents who work in the bureau’s most sophisticated divisions.”
Those concerns were based on the fact that the president is officially head of both the Justice Department and the FBI.
“If the decision is made based on the value of the evidence, as the president says it will be, she will be indicted,” flatly declared Napolitano. “But the FBI agents involved are finding it hard to believe that there will be no political interference when and if the president endorses her as his choice to replace him.”
In other words, some fear that even if the FBI recommends charges against Clinton, the Justice Department would still not indict her because of political pressure, especially if it came from the president. Some have speculated such a scenario might cause mass resignations at the FBI, putting pressure on the administration to charge Clinton, or maybe even force her to drop out of the presidential race if public opinion were to turn against a candidate under such a serious legal cloud.
But all of that uncertainty is why the Fox News Senior Judicial Analyst strongly argued for taking the investigation away from the administration.
“An independent counsel would alleviate conflict because an independent counsel is not answerable to the director of the FBI, is not answerable to the attorney general and is not answerable to the White House,” said Napolitano. “An independent counsel would have his or her own budget, discretion as to what charges to bring, (choice of) FBI agents to work for him or her, and is not really answerable to anyone.”
He even suggested the president could be called as a witness in the case, if some of his own emails had been sent to Clinton’s private server, creating an even greater conflict.
Napolitano has said that he was “100 percent certain” the FBI had overwhelming evidence to indict and convict Clinton, and that the bureau was in the final stages of its investigation. However, that was back in April, and the FBI still has yet to interview Clinton. Current speculation among Washington insiders is that she will be interviewed in July.
McCarthy, who frequently appears as a guest legal analyst on the Kelly File, told WND he disagreed with Napolitano’s solution for a very simple but monumental reason: He contended the appointment of an independent prosecutor would be unconstitutional.
To back up his assertion, McCarthy cited the writings of Scalia, who argued that an independent counsel would be as impractical and ineffective as it would be unconstitutional.
“Scalia’s dissent was always right, proved prescient, and is now generally thought to be the definitive statement of the law. In our system, you cannot have an ‘independent counsel’ in the sense of independent from the executive branch because it is unconstitutional,” McCarthy told WND.
And this is why it would be impractical: “Prosecution is an executive power. All executive power in the federal system is expressly vested by the Constitution in the president. Consequently, you cannot have an official who exercises executive power ‘independent’ of the president. Any ‘independent’ or ‘special’ counsel would ultimately report to the president (and probably to the Attorney General).”
But even that, he insists, is not the real issue. “The problem is not the unconstitutionality of independent counsels,” said the former federal prosecutor. “It is that we get the government the public wants, and if the public is indifferent to ethics and morals, it will tend to be unethical and immoral.”
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McCarthy suggested Americans are stuck with the process we’ve got, and the issue really isn’t whether Obama will meddle in the investigation, because it’s basically too late for that. If the public had a problem with a potential conflict of interest, it should have pushed for the remedy the Founders provided: impeachment.
That is why, McCarthy said, he wrote the book “Faithless Execution: Building the Political Case for Obama’s Impeachment.”
“Our system has a way for Congress and the public to deal with these problems: impeachment and the ballot box. Under Article I, Section 3, the punishment for impeachment includes ‘disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States’ – so it theoretically applies even to former government officials for purposes of disqualifying them,” McCarthy told WND in an email outlining his case against appointing an independent counsel, or special prosecutor.
“However, as I’ve said any number of times (and as the book centrally argues), impeachment is a political remedy, not a legal one.” McCarthy maintains that is a critical distinction, because, basically, an administration cannot effectively investigate itself. That is the job of Congress, and, by extension, the public.
“If the public does not want an official removed/disqualified, there will not be political support for impeachment no matter how many high crimes and misdemeanors have been committed and how serious they are.”
He pointed out a further impracticality: “In Mrs. Clinton’s case, there is no political support for her impeachment, and there was not when she was in office. It was never even seriously discussed. And I imagine at least 46 percent of the country (and maybe more than 50 percent) is poised to vote for her for president.”
As for the president’s possible lack of impartiality, McCarthy mentioned he had already “noted that Obama has made public comments that minimize the violations involved in Hillary’s email caper. Anything more he says or does that is expressly or implicitly dismissive just adds to this already existing problem but is not anything new.”
And, as for what Judge Napolitano was hearing from his sources, McCarthy said he didn’t know whether Obama’s emails were among the top classified communications.
But, the former prosecutor then alluded to a potentially much more explosive issue.
McCarthy implied the reason Clinton hasn’t been charged yet may be because the president might be guilty, too.
That was because, as he’d previously noted, “Obama knowingly communicated with Clinton over a non-government, non-secure e-mail system.”
In his email to WND, McCarthy referred to an article he had written back in February in which he had observed, “Eighteen e-mails between Mrs. Clinton and President Obama have been identified, and the government is refusing to disclose them” and that they likely were “not about her recommendations for the best country clubs in Martha’s Vineyard, but about matters that the White House judges too sensitive to reveal.”
“[D]o you think those exchanges just might touch on foreign-government information, foreign relations, or foreign activities of the United States – deliberations on which are presumed classified?” he asked rhetorically, in the article.
He added the clincher, that the administration was fighting the release of those emails because they “might expose that Obama engaged in recklessness similar to Clinton’s, albeit on a far smaller scale.”
But, despite the gravity of that possibility, and the difficulty inherent in having a Justice Department investigate its own president, McCarthy contended that an independent counsel was still not a viable solution.
The bottom line, as McCarthy spelled it out, is “An ‘independent counsel’ – as in independent of the executive branch – is unconstitutional. I know my friend Judge Napolitano is an admirer of Justice Scalia. I’d suggest that he go back and read Scalia’s dissent in Morrison v. Olson.”
The former prosecutor provided a link to that opinion.
McCarthy is a New York Times best-selling author, Fox News analyst, contributing editor at National Review and a former adviser to the deputy secretary of defense. As chief assistant U.S. attorney in New York, he successfully prosecuted the perpetrators of the first World Trade Center bombing.