Are special counsels on their way to extinction?

Combined with Judge Cannon's dismissal of the Mar-a-Lago case, the Supreme Court's immunity decision may have rendered independent prosecutors obsolete

Photo by Tingey Injury Law Firm on Unsplash

Although U.S. District Judge Aileen Cannon’s decision to completely throw out the Mar-a-Lago case did not come as a shock, it has dramatic implications—particularly when coupled with the Supreme Court’s immunity decision.

While numerous commentators have argued that an appeal is vital because the decision “casts a cloud” on the legitimacy of the underlying law authorizing the appointment of a special counsel, their arguments miss the forest for the trees.

As I told Scott Detrow on NPR, my view is that given the immunity decision, special counsels might be irrelevant regardless of whether they are constitutional.

The whole point of special counsels (previously referred to as independent counsels and then special prosecutors) is to insulate prosecutors from the president's political influence. We want prosecutors with independence to protect the subject of an investigation and prosecution from political persecution, and to ensure that the president isn’t using—or hampering—DOJ to his own personal advantage.

Now that presidents are able to commit crimes through official power, the notion of prosecutorial independence seems almost quaint.

Of course, whether the immunity decision will lead to an uptick of crimes in the Oval Office remains to be seen. The Court essentially left it up to the judgment and integrity of presidents. The Framers of the Constitution understood that “trusting” politicians to do the right thing isn’t enough, however. That wasn’t enough for the Supreme Court to leave an essential check in place—criminal liability if presidents cross red lines.

So for special counsels, honest presidents might still use them. Dishonest ones will scoff at the notion that there are any boundaries between the power of DOJ and their personal aims. The Supreme Court said there aren’t any, after all.

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