Mark Penn: Fixing the special counsel statute in 10 not-so-easy steps

After three major independent and special counsel investigations — one which ended in the resignation of a president, one which went down the wire to impeachment and an acquittal in the Senate and now the Russia-Trump investigation has ended in all but clearing the president and his top staff, it is crystal clear that the important process of holding presidents accountable needs an overhaul.

I fought the 1998 attempt to unseat President Clinton, and when I saw how strong the bias was against this president, I objected to it on the grounds that there was never a real, verified basis for such an investigation. Any fair read of the dossier which seems to have prompted the Russia-Trump probe would have revealed its contents to be far-fetched at best. An investigation launched by a dubious document continued to be plagued by problems and politics. Now, one of the most important jobs coming off this experience is to prevent this from ever happening again by putting in place new safeguards and rules. For starters, we need some failsafe mechanisms that would block an administration from spying on opposition campaigns. The days of J. Edgar Hoover are long gone, but as we learned, some of his methods have crept back into the system.

THE MUELLER REPORT: WHAT YOU NEED TO KNOW SO FAR

To protect future presidents, whether they be Democrats, Republicans or Independents, let’s agree to a "bill of rights" for political parties, campaigns and administrations to prevent the future weaponization of our intelligence and law enforcement agencies in gross violation of the First Amendment and other freedoms. Let’s give special counsels the power they need, but curb their excesses. Here's what I propose:

1. Let’s repeal or modify the Logan Act, the seldom-invoked law barring unauthorized citizens from negotiating with foreign governments so that it does not apply to incoming administration officials that are part of a transition team. This will avoid the kind of mischief played by Acting Attorney General Sally Yates, an Obama administration holdover, on Lt. Gen. Michael Flynn, the incoming National Security Advisor.

2. All information used to initiate a special counsel investigation must come from regular intelligence sources, not extra-legal channels, and must meet the highest levels of verification before being utilized for the purpose of appointing a special counsel or to conduct wiretaps or other surveillance. Such verification must be signed and countersigned by top intelligence officials, who must also declare they have no conflict of interest arising from their employment or employment of family members. They must disclose the full history of where and how the information was received.

3. Warrants to surveil campaign or administration officials must be obtained through the regular federal courts, not FISA courts. Such courts have adequate safeguards when secrecy is needed but have higher standards for the issuance of warrants. FISA courts have become secret backdoor open channels for warrants to spy on American citizens.

4. The principal investigators of any issues that have arisen will be agents and prosecutors acting in the normal course of their duties and may be supervised, but not supplanted by, the political appointees at the top. Any unusual activities, like suggestions to wiretap the president or call investigations "matters" must be reported to both the attorney general and the inspector general.

5. Special counsels are hereby classified as principal officers, requiring confirmation by the Senate. Their terms will be for one year unless renewed by the Justice Department and confirmed by the Senate. If the investigation involves political campaigns or administration officials, the team will have roughly equal numbers of prosecutors from the two parties. Should the attorney general be conflicted out of selecting a special counsel, the task will be performed by unanimous agreement of the next two officials of the Justice Department. All selections will go through the highest level of conflict checks over past clients and internal relationships.

6. Excessive intimidation tactics are hereby banned. Such tactics include arresting or raiding the offices of non-violent suspects with armadas of agents with guns drawn at offices and private residences and rousting witnesses at 6 a.m., as we saw with raids on the homes of Paul Manafort and Roger Stone. They will be afforded reasonable bail and not be placed under any gag orders preventing them from commenting publicly upon the prosecution. Political prosecutions need air, not secrecy.

7. The use of process crimes to squeeze defendants to plead guilty to other crimes is hereby forbidden. Should such crimes occur during the investigation, they will be turned over to a separate group of prosecutors with discretion to prosecute those crimes on their own based on their materiality. Prosecutors may not use crimes like tax evasion or failure to register as lobbyists to extract guilty charges to other crimes that might not otherwise be proven in court to build a narrative.

8. Lawful campaign and government transition records such as emails will be obtainable only through the legal process, not through deals with holdover administration members. And all standard protocols will be observed for questioning and obtaining White House information, which include working through the White House counsel, not just sending agents over to interview subjects, as the FBI did with Flynn. Any unmasking - naming of Americans recorded on phone calls with foreigners under surveillance - involving campaign or administration officials will always be reported to the attorney general and the relevant inspector general, and unmasking will be greatly limited to the smallest possible circle.

9. Those who were investigated by a special counsel but not charged will receive the maximum possible protections of their privacy upon the conclusion of the investigation, the right to review and comment on the report before it is released and full recovery of all attorneys' fees. Anyone acquitted after being charged by a special counsel will receive double their attorney’s fees.

10. This can only be advisory, but the press, courts and Congress will give appropriate deference to a completed report and they will have access to the non-classified, non-grand jury components of it — no more and no less.

Let’s get these measures in place now and we will still have special counsels when we need them. They will simply have to conduct themselves not through intimidation but with the fairness and due process that is the hallmark of American justice and democracy.