Lawfare Research Fellow Matt Gluck, along with a panel of experts, discuss the history and flaws of special counsels, focusing on recent testimonies regarding President Biden's handling of classified material. They explore the evolution of the special counsel institution, critique the Mueller report, and suggest changes to improve accountability and effectiveness. The podcast also delves into media coverage of special counsel reports and the challenges of presenting complex legal documents to the public.
The handling of classified information by high-ranking officials and the role of special counsels in investigating such matters are subjects of renewed scrutiny.
The special counsel system faces criticism for its truth commission functions, challenging the dual roles of truth-teller and prosecutor.
Deep dives
Robert Herr's Investigation and Report Declining Prosecution of President Biden
Robert Herr, appointed as special counsel by Attorney General Merrick Garland to investigate President Biden's handling of classified material, released a report in February stating that prosecution of Biden was not warranted. The report criticized Biden's handling of classified information but declined to prosecute him. This sparked discussions on Herr's thoroughness and judgment.
History and Evolution of Special Counsel Institution
Jack Goldsmith discusses the history of special counsels, noting the transition from the independent counsel statute to the current special counsel regulations. He highlights the challenges faced in investigating high-ranking officials and the need for mechanisms like the special counsel.
Benjamin Wittes' Critique of Special Counsel's Truth Commission Role
Benjamin Wittes critiques the truth commission aspect of special counsels, pointing out problems with the dual role of truth teller and prosecutor. He argues that the focus on producing reports for public consumption distorts the investigative process and leads to challenges in maintaining prosecutorial neutrality.
Role of Media and Press Coverage in Special Counsel Investigations
Quinta Jurecic highlights the media's handling of special counsel reports, emphasizing the need for in-depth analysis beyond sensational headlines. Reporters are urged to read and understand the full document, avoid cherry-picking details, and present a comprehensive picture of the findings to the public.
In February, Special Counsel Robert Hur released a report declining to prosecute President Biden for his handling of classified material. Earlier this month, Hur testified before the House Judiciary Committee answering questions from irritated members on both sides of the aisle who were critical of Hur’s work. Hur’s report and its fallout have reignited long-simmering questions about the usefulness of the special counsel as an institution.
Lawfare Research Fellow Matt Gluck sat down with an all-star crew of Lawfare regulars—Lawfare Editor-in-Chief Benjamin Wittes, Lawfare Co-Founder and Harvard Law School Professor Jack Goldsmith, Lawfare Senior Editor Quinta Jurecic, and Lawfare Contributing Editor and former career federal prosecutor Chuck Rosenberg—to break it all down. They discussed the history of the special counsel institution and its predecessors, its current flaws, and how it should change.