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All the missed opportunities for an Obama Special Counsel

Fred Lucas author image /

Maybe there is more than meets the eye regarding the Trump campaign’s alleged “collusion” with Russia. But if nothing comes of it, as seems likely, no one can claim it’s for lack of an aggressive investigation.

Special Counsel Robert Mueller has impaneled a grand jury and the FBI raided the home of Trump’s former campaign manager Paul Manafort. So, Mueller, a former FBI director under both George W. Bush and Barack Obama, is clearly ramping things up.

The mainstream media is predictably salivating over these events, interesting since we now know both the Washington Post and New York Times resisted covering the tarmac meeting between former President Bill Clinton and then-Attorney General Loretta Lynch in the heat of the Hillary Clinton email server investigation—a meeting that in itself cried out for an independent investigation.

Ahead of Mueller’s appointment, there was plenty of media pressure demanding an independent investigation of the Trump-Russia matter, and the well-documented media double standard can translate to a legal double standard. That’s clear from the previous eight years. Even though Obama claimed last October, “we have not had a major scandal in my administration,” a special prosecutor was certainly warranted on a number of occasions.

There were plenty of scandals that were assuredly major and never got a fair investigation by a historically politicized Justice Department, or for that matter a good vetting outside conservative media outlets. In most cases, the Obama scandals weren’t White House misdeeds per se, or personal scandals, similar to Watergate or Monica-gate. But these controversies occurred during Obama’s administration.

Most noteworthy again was the behavior by his first secretary of state, Hillary Clinton, and her use of hacker-friendly private email servers that handled classified information. This is one of the many issues veteran White House correspondent Keith Koffler digs into in his new book, The Obama Scandals: The 22 Worst Outrages of the Obama Administration.

“I find it very ironic that the Obama administration, which held itself up as a paragon of ethical behavior, lacked the moral backbone and basic sense of duty to appoint a special prosecutor for Hillary Clinton in a case where there was far more evidence of criminal activity than in the alleged Russia collusion episode and where there were clear conflicts of interest,” said Koffler, editor of White House Dossier.

Only after the press (not the Times or the Post) first reported on an improper, clandestine meeting at an airport between Mr. Clinton and Lynch did the then-attorney general pledge to keep her distance from the scandal that consumed much of the 2016 presidential race.

It was this odd deference to then-FBI Director James Comey that led to Comey’s downfall. In a memo Deputy Attorney General Rod J. Rosenstein found that Comey’s decision July 5, 2016, to close the Hillary Clinton probe without prosecution usurped Lynch’s authority. “At most, the Director should have said the FBI had completed its investigation and presented its findings to federal prosecutors,” Rosenstein wrote.

Comey, he wrote, acted based on his own belief that Lynch had a conflict of interest in the investigation. “Compounding the error, the Director ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.”

“Not only had Loretta Lynch met inappropriately with the subject of the probe’s husband, Bill Clinton, but the political imperative not to charge her was overwhelming, given that she was going to be the Democratic nominee to succeed Obama,” Koffler continued. “And I’d note that, contrary to what many people think, Lynch didn’t even take the basic step of recusing herself, she merely said that she would accept FBI Director [James] Comey’s decision on whether to charge Clinton. She could have reversed herself.”

The second clear example where an independent investigator was necessary was the IRS targeting scandal, in which Lois Lerner, former director of the IRS Exempt Organizations division, tried to pin all the blame on officials in one Cincinnati office. Obama later tried to do the same. Further revelations from both an inspector general and congressional probes turned up overwhelming evidence of a sustained effort to go after Tea Party and conservative groups. Lerner invoked her Fifth Amendment rights against self-incrimination before Congress to avoid cross-examination of her claims of innocence. The House voted to find Lerner in contempt of Congress for refusing to testify. But, no prosecutions.

When an arm of the executive branch abuses government power to target groups opposing the president, it would presumably 1.) raise suspicion if there were orders from the top and 2.) suggest a conflict of interest in getting to the bottom of the matter.

As if taunting Americans, the Obama Justice Department did the polar opposite of naming an independent investigator.

Instead it named DoJ prosecutor Barbara Bosserman, who had donated $6,750 to Obama’s campaigns and the Democratic National Committee from 2004 to 2012, to investigate the matter. Shockingly, just shockingly, she found no wrongdoing. As we later found out, the Department of Justice was aware of the matter two years before Congress was and took no action, according to documents obtained by Judicial Watch through the Freedom of Information Act.

Early in the Obama administration, then-House Committee on Oversight and Government Reform ranking member Darrell Issa (R-Calif.) urged a special prosecutor be named to determine if Obama broke the law in offering then-Democratic Rep. Joe Sestak of Pennsylvania a federal job to prevent him from challenging Republican-turned-Democrat Sen. Arlen Specter in a primary election in 2010. Both Specter and Issa suggested such an offer could be an illegal quid pro quo. Sestak beat Specter in the primary and lost to Pat Toomey in the general election in 2010, and the matter pretty much disappeared.

The scandal seems like small potatoes compared to others during the Obama administration—where people actually died.

Recall that we found out about Hillary Clinton’s bizarre private email server set-up because of the select committee named to investigate what happened in Benghazi, Libya, where four Americans were murdered by Islamic terrorists at a U.S. compound. Clinton, Obama, and then-UN Ambassador Susan Rice spent weeks claiming it was caused by a spontaneous response to an anti-Islam video. That turned out to be a glaring lie. Congressional investigations found diplomats had pleaded for better security in Libya for months before the attack, which had nothing to do with the video.

The other deadly scandal was Operation Fast and the Furious, a botched Justice Department gun-walking operation that allowed about 2,000 guns to flow to Mexican drug-trafficking organizations before federal authorities lost control of the firearms. The operation began in fall 2009 and was halted in December 2010 after two of the guns from the operation were located at the Arizona murder scene of U.S. Border Patrol Agent Brian Terry. The DoJ obstructed an inquiry by Congress, and in a bipartisan vote, 17 House Democrats joined nearly every Republican to hold Attorney General Eric Holder in contempt of Congress. Last June, Judicial Watch released government documents that showed 69 people were killed by the lost Fast and Furious guns, mostly in Mexico.

The issue with both Benghazi and Fast and Furious is that it was hard to pin down an underlying crime. Incompetence is not a crime, though a cover-up could be, depending on the circumstances, such as, say, hiding information from congressional investigators. Considering the loss of life with no other conceivable way to investigate the matter, an independent probe would have been welcome.

The point is that the Obama administration slipped away from numerous scandals that included potential underlying crimes, and with far more evidence than what we are seeing now with the Trump-Russia allegations.

In 2007, after an exhaustive investigation, former Special Prosecutor Patrick Fitzgerald scored a conviction of Lewis “Scooter” Libby for perjury. The probe began based on an investigation into who leaked CIA employee Valerie Plame’s name to the press. After the Libby conviction, Ann Coulter wrote, “This makes it official: It’s illegal to be Republican.” That would seem to apply today when comparing the treatment of the Obama scandals to the Russia investigation.

The obvious response would be that President Bill Clinton couldn’t shake Independent Counsel Ken Starr, as the Whitewater probe eventually turned into the Monica Lewinsky impeachment investigation.

Sure, Bill nearly paid the ultimate political price because of an independent counsel, but in the end, most of the news media took cues from the embattled president’s friends such as James Carville and savaged Starr for doing his job. Fitzgerald never underwent such scrutiny while investigating a Republican administration.

Starr had a stellar legal reputation—a former federal judge and solicitor general—before Democrats and the media turned him into an “out of control prosecutor” with hit pieces on “60 Minutes” and other news programs. An alternative media hadn’t matured at the time, and most of the public was getting a lopsided perspective, which helped Clinton survive a scandal that likely would have toppled a Republican president.

Though perjury—along with obstruction of justice—were in the articles of impeachment, Starr’s probe couldn’t be labeled a perjury trap. Clinton lied in the Paula Jones civil case, something Starr discovered separately. The entire Plame case could reasonably be called a perjury trap. It’s questionable at best that Plame was a covert employee. If she was, it’s likely Fitzgerald would have gone after then-Deputy Secretary of State Richard Armitage, eventually outed as the leaker of Plame’s name to the press. But, instead it was Libby who was convicted and whose sentence was commuted by President George W. Bush.

It’s worth noting the big difference in the roles of Starr, Fitzgerald, and Mueller.

In his 2003 book, Legacy: Paying the Price for the Clinton Years, National Review Editor Rich Lowry called the Starr investigation, “Watergate’s revenge,” as Democrats created an independent counsel after Watergate, in part to keep a future Richard Nixon from firing a future Archibald Cox. The independent counsel wasn’t appointed by the DoJ, but by a three-judge panel, and wasn’t accountable to anyone because he couldn’t be fired. That was the complexity of the thing. Unaccountability isn’t good, but if he was accountable, how could he be independent?

Democrats gleefully used that law to press for investigations into the administrations of Ronald Reagan and George H.W. Bush, chiefly with Independent Counsel Lawrence Walsh digging into Iran Contra. After the Clinton impeachment, Democrats had an epiphany that maybe the law wasn’t so great, and joined Republicans in letting it expire in 1999.

That returned things to a special prosecutor, Fitzgerald’s title, or special counsel, which is Mueller’s title. Only time will tell where this probe will take us, particularly since Mueller is now going after Trump’s business documents and tax records.

If there was actual collusion between the Trump campaign and Russia, there are a hand full of charges that could emerge, such as under the Logan Act—that bans unauthorized citizens from negotiating with a foreign power; or charges against certain individuals that might have been less-than-honest on disclosure forms for their security clearance. So far anyway, aside from the apparently unproductive Trump Tower meeting with a Russian attorney that Donald Trump Jr. corralled Manafort and Jared Kushner into, there seems to be almost no evidence of collusion.

Mueller came into this probe with a sterling reputation, as did Starr in the 1990s before being maligned by Democrats. Mueller shouldn’t feel compelled to somehow, someway, nail someone or find something to justify the investigation. He’s not a rookie prosecutor with a resume to build. So, theoretically, with nothing to prove, he should be able to truly go where the facts lead, even if there are plenty of reasons to be skeptical given his close relationship with Comey and a staff packed with Democratic donors.

If anything does come of the probe—it will likely be barely related to any type of Russian collusion, and fall into the category of someone providing misleading information on disclosure forms or possible financial aspects of the Trump Organization. That’s what history tells us about special prosecutors. It’s exactly the reason Obama made sure he never had one digging around his administration.

The Author

Fred Lucas

Fred Lucas is author of Tainted by Suspicion: The Secret Deals and Electoral Chaos of Disputed Presidential Elections (Stairway Press, 2016) and White House correspondent for The Daily Signal.