by Mitch Kokai
Senior Political Analyst, John Locke Foundation
There is so much legal ignorance in the reporting and commentary about the “Russia investigation,” it is hard to keep up. The latest is that we need a special prosecutor because the firing of FBI director James Comey could amount to Watergate-type obstruction of justice.
The claim is half-baked, but I suppose it is an improvement. Up until now, as I pointed out over the weekend, Senate minority leader Chuck Schumer (D., N.Y.) and the media-Democrat echo chamber agitating for a special prosecutor had forgotten the little matter of . . . a crime. Putting aside all the downsides of a special prosecutor that I have outlined on other occasions (e.g., the constitutional flaws of the arrangement, the fact that a special prosecutor is not actually independent of the president and Justice Department, the reality that a special prosecutor undermines an administration’s capacity to govern . . . ), it is foundational that there must be a crime before a prosecutor is assigned to investigate it. …
… The only criminal offense arising out of the Kremlin interference in the 2016 election is hacking. It is not enough to say there is no evidence that the Trump campaign was complicit in this hacking. We must add that U.S. intelligence agencies have told us who carried it out – Russian intelligence – and have further explained that the Russian scheme targeted both Republicans and Democrats.
So now, at last, we have a gambit to fill this gaping hole in the demand for a special prosecutor: Trump’s dismissal of the FBI director is said to interfere with the FBI’s ongoing Russia investigation; therefore, the theory goes, it could amount to obstruction of justice, a felony. This suggestion is legally and factually specious. It is based (not for the first time) on a misrepresentation of the kind of investigation the FBI is doing.