The headlines called it a non-event when Attorney General Jeff Sessions decided not to appoint a special counsel to look into the special counsel after all. For the people who believe that fired FBI agent Andrew McCabe is at the center (with Hillary Clinton, natch) of a vast Deep-State conspiracy to bring down Donald Trump, this was a bitter disappointment.
Or maybe not. As the stories noted farther down, Sessions did announce that sometime last fall, without saying anything publicly at the time, he had appointed the U.S. Attorney for Utah, John Huber, to team up with Justice Department inspector general Michael Horowitz to conduct an internal investigation into all the questions that Republicans in Congress have raised about the FBI and its allegedly raging anti-Trumpery.
What does this mean? Don’t worry, say most people I’ve talked to. Norm Eisen of Citizens for Responsibility and Ethics in Washington told me that “it is not unusual to task U.S. attorneys outside Washington with things like this because they’re outside the bubble” and that “Huber has a good and non-partisan reputation.” Brian Fallon, erstwhile spokesman for Hillary Clinton’s campaign, tells me he’s “not overly concerned (yet)” with this development, adding that a U.S. attorney like Huber has to work with FBI agents every day, so he’s unlikely to go out of his way to antagonize the bureau.
Huber does have a solid rep. He was originally appointed by President Obama, as all the stories mentioned. However, what most stories didn’t mention is that Obama did not insist on appointing Democrats to fill U.S. attorney slots in red states, often naming Republicans just to avoid a Senate fight, especially if the state had two GOP senators (as Utah did when Obama named Huber). Most of them also didn’t mention that last year, Huber raised eyebrows by appearing at a press conference at the White House—a quite unusual move for an independent prosecutor—to tout (of all things!) aspects of Donald Trump’s immigration agenda.
But fine. Let’s say he’s the straightest arrow in the history of arrows. I still say it’s worth taking a moment to recognize the enormous power the man has been handed; the grave extent to which he may one day hold the Constitution in his hands; and the unprecedented nature of the situation into which he’s been thrust.
Let’s deal in detail with the last point, because if you’re news junkie enough to have followed all this for the last few days, you may be thinking: Unprecedented? No it’s not, Tomasky.
Well, I beg to differ.
It is true, as Eisen says above, that U.S. attorneys have sometimes been tasked with conducting these kinds of outside reviews. In the past few days, articles about Huber have often cited Patrick Fitzgerald, who was the U.S. attorney in Chicago when a certain Bush-era Justice Department official named James Comey tapped him to look into the Valerie Plame-Joe Wilson matter (it fell to Comey to choose Fitzgerald because Attorney General John Ashcroft had recused himself on the matter). In another case, Eric Holder, Barack Obama’s AG, appointed two U.S. attorneys to investigate possible illegal leaks of classified information from the White House to reporters (one of those USA’s, incidentally, was Rod Rosenstein; small world!).
So technically, yes, there is precedent here. But there is a huge difference between those cases and this one. In those two cases, outside prosecutors were named to investigate potential wrongdoing by officials of the Bush and Obama administrations respectively. They were appointed because of political pressure from the press and the opposition party.
In this case, Huber was appointed by Sessions not to investigate potential wrongdoing by Trump administration officials, but potential wrongdoing by its critics and/or its perceived enemies. And he was appointed because of pressure from within the president’s own party to go after the supposed Deep Staters.
So on the surface, Huber’s appointment is “the same” as Fitzgerald’s and the other one, in that Huber is investigating possible malfeasance within the broad executive branch. But in raw political terms, it is precisely the opposite kind of case.
Imagine if Eric Holder had appointed a U.S. attorney to look into possible illegal leaking within the IRS by officials who were critical of Lois Lerner. Conservatives’ brains would have exploded. Yet that is essentially what Sessions has done here, and so far, Washington is yawning.
Maybe this is why I noticed some chortling over the last couple days by two conservative commentators. Michael Goodwin, in his New York Post column, argues that this is part of the A.G.’s long game (“Sessions’ decision is far more complex than reports suggest”) and means that he will eventually name a second special counsel. A Justice Department spokeswoman confirmed to me that Sessions left that door open.
And on Fox recently, law professor Jonathan Turley—once upon a time a sorta-kinda liberal, but now a Federalist Society “contributor”—veritably gloated. “I think people are missing what could be a brilliant move here by Sessions,” Turley said. “What he did is he essentially combined the powers of the inspector general with the powers of a line prosecutor.”
Again, maybe Huber is Louis Brandeis and Clarence Darrow and Atticus Finch (uh, the movie Atticus Finch, that is) all rolled into one. Maybe he (and Horowitz) will find no wrongdoing and say there should be no second special counsel to investigate the special counsel, and that will be that.
But he is worth keeping an eye on. Those of us burdened with long memories recall reading a lot of quotes from Washington establishment types back in 1994 about how the guy named to replace independent counsel Robert Fiske was a man of utmost probity. That man was Ken Starr. At a moment of complacent forgetting, that seems maybe worth remembering.