Gregg Jarrett: A second special counsel must investigate Clinton, Comey, Lynch and others

There was a time, not so long ago, when candidate Donald Trump vowed, if elected, to have his attorney general appoint a special counsel to reopen the Hillary Clinton investigation and, if warranted, bring criminal charges against her.

It never happened, of course. And the president has only himself to blame.

President-elect Trump had a change of heart after winning the election, signaling that his new administration would let bygones be bygones, explaining that Clinton had “suffered” enough. It appeared to be an act of graciousness, the law be damned. Trump should have been reminded of the proverb that no good deed will be left unpunished.    

Belatedly, the president has experienced another change of heart.  Under siege by a special counsel who seems to have gone rogue, Trump is reversing himself and wants the Clinton investigation reexamined. Remember the campaign chants? If prosecuted and convicted, “lock her up”.

There is something fundamentally unfair when a special counsel is appointed to investigate the winner of a presidential contest, but not the loser.

Perhaps the president is guilty of a shameless subterfuge. Or, more likely, he genuinely feels he is innocent of any wrongdoing, yet Clinton is not.  It’s that fairness thing.  

But the law cares not a whit about Trump’s desires and motives. It is not fickle, as politicians are prone to be. If you commit a crime, you should be brought to the dock. Period.

Try telling that immutable fact to the media. They will howl in perfect harmony.

The media believes Clinton is entitled to a “get out of jail free” card.  Politics, as it intersects the law, is nothing more than a game like “Monopoly”. Don’t you see? Clinton failed in her bid to become president, so she is somehow exempt from abiding by the law.    

Apparently, that is how the Washington Post envisions it. In a recent story, the newspaper justified it this way:

“Trump’s suggestion that his top law enforcement official investigate a former political rival is astounding, and even his allies have said in the past that such a move would be unheard of in the United States.”

By this reasoning, I could rob a bank, run for president but be excused from investigation and/or prosecution upon losing.  Really?

Since when do you receive a “get out of jail free” card simply because you are a defeated political rival? Could all manner of crimes be committed by a candidate without fear of legal consequences because of a paucity of votes on election day?  Where is that statute written? I can’t seem to locate it.

It should be neither “astounding” nor “unheard of” for people to be held accountable for their actions, regardless of their exalted position.

Theodore Roosevelt popularized the long-held principle in democracy that “no one is above the law”.  Yet, there now appears to be an exception to the rule of law as it applies to Clinton.  Let’s call it the “Clinton Exclusion”.

Fortunately, the House Judiciary Committee does not believe such immunity can be found anywhere on the books.  It recently voted to reexamine evidence that Clinton may have broken the law, perhaps with the help of then-FBI Director James Comey and former Attorney General, Loretta Lynch.

At the same time, twenty members of the Committee sent a letter to the Department of Justice asking for the appointment of a second special counsel. They identify more than a dozen instances of suspected illegality based on fairly compelling evidence.

There is much to investigate. Did Comey usurp the authority of the Attorney General in terminating the Clinton email investigation?  How could downloading more than a hundred classified documents onto Clinton’s private and unsecured email server not constitute crimes under the Espionage Act? Why were five people given immunity while others invoked the Fifth Amendment, yet no grand jury was empaneled?

The Committee is also interested in the extent to which Clinton Foundation donors seemed to have gained special access to the Secretary of State. Did she use her government office to enrich herself, her husband and their foundation? It is a crime to use a public office to confer a benefit to a foreign government in exchange for money. Clinton’s role in approving the “Uranium One” transaction and the timing of Russian donations appear to be of special concern.

Lynch’s role, in particular, should be scrutinized by a special counsel. The Committee cites her private meeting with former President Bill Clinton and actions she allegedly took to mislead the public: “Mr. Comey’s testimony has provided new evidence that Ms. Lynch may have used her position of authority to undermine the Clinton investigation.” 

The call for a new special counsel is not limited to investigating Clinton, Comey and Lynch. It would also be empowered to determine who may have illegally unmasked the names of U.S. citizens, including those in the Trump campaign, incidentally collected by various intelligence agencies.

The Committee identifies former National Security Adviser Susan Rice and ex-United Nations Ambassador Samantha Power as potential suspects.  It is a crime to lie in an unmasking request or to use a government office for a political purpose or to leak an unmasked individual.  

Finally, the Committee urges a special counsel to determine why the FBI relied on the infamous anti-Trump dossier engineered by Fusion GPS, reportedly at the behest of a Clinton supporter.  Was Russia involved, as evidence suggests? Did the FBI, under Comey, agree to pay a substantial sum of money to someone connected to the dossier?

There is something fundamentally unfair when a special counsel is appointed to investigate the winner of a presidential contest, but not the loser.  The imbalance is especially acute when the motives of the current special counsel, Robert Mueller, are inherently suspect.

Mueller’s close relationship to the key witness, James Comey, creates a disqualifying conflict of interest forbidden by the special counsel law (28 CFR 600.7 and 45.2). Yet Mueller has made no move to recuse himself from the case. And neither has his boss, Acting Attorney General Rod Rosenstein, who finds himself presiding over the investigation as both prosecutor and witness since as he authored the memo advising President Trump to fire Comey.

Losers in presidential elections are no more privileged under the law than are winners.

Richard Nixon won re-election in 1972, but became an unindicted co-conspirator in the cover-up of the Watergate burglary. He would surely have been indicted upon leaving office had he not been the beneficiary of a pardon.

That was Nixon’s “get out of jail free” card. Where is Clinton’s?