Trump was right — Clinton’s email case needs a special prosecutor

The “professional Left” rose indignant over Donald Trump’s debate claim that his election could land Hillary Clinton “in jail.” The regrettable remark fed an easy “loose cannon” narrative of a candidate unaware or disinterested in limits on presidential power.  

{mosads}But lost in the umbrage are the merits of a special prosecutor for the email scandal. The investigation, which cleared Clinton and her aides, grows more suspect with every late-Friday document dump and WikiLeak release. A special prosecutor under a Trump administration could clarify disturbing and unanswered questions. It could also help cleanse the ethical and legal stain that has hallmarked Department of Justice in President Obama’s tenure.

The investigation’s flaws are manifest and growing. Tuesday’s release of John Podesta’s hacked emails revealed “DOJ folks” had apprised Clinton’s campaign of events in one email-related civil suit. What DOJ privately told Clinton operatives is paramount as it implicates partiality.

But even without illegally obtained sources, DOJ’s review of Clinton and close aides Cheryl Mills and Heather Samuelson raises questions only a subpoena-powered outsider can answer.

Mills and Samuelson are key figures as Clinton charged them with sorting emails before a technician “bleached” the private server. An earnest search for truth would have leaned hard on those two subordinates. The opposite happened here.

Contravening both ethics rules and possibly federal law, DOJ treated the aides with a deference reserved for foreign dignitaries at a state dinner. It allowed both to claim an implausible attorney-client privilege to avoid questions about the server’s set up and operation and incredibly let Mills attend Clinton’s FBI interview as a “personal attorney.”

DOJ left unchallenged the aides’ “personal attorney” claim despite working with Clinton at State in non-legal policy roles. As fact witnesses and possible accomplices, legal ethics rules barred them from representing Clinton, as did their status as former government officials involved the case. Finally, federal law prohibits former government officials from trying to influence an investigation they were involved in, as a “personal attorney” presumably would.

And before taking the aides’ evidence-stuffed personal computers, DOJ granted them immunity and allowed irresponsible restrictions. The feds immunized Mills and Samuelson for any illegalities found on their computers and didn’t search for documents dated after January 31, 2015. Immunity was unnecessary; DOJ could have convened a grand jury and subpoenaed the computers. And the January cutoff omits any conversations the two had with the technician who “bleached” the server on March 31.

Amazingly, amidst Congressional investigations and FOIA suits, DOJ apparently agreed to destroy the computers and any potential evidence therein. The House Judiciary Committee has asked DOJ’s Inspector General to review the handling of Mills and Samuelson.

The investigation’s flaws should not surprise. It continues DOJ’s politicization throughout Mr. Obama’s tenure. Yet it’s unrecognized by former Attorney General Eric Holder who tweeted after Trump’s “jail” remarks:

Be afraid of any candidate who says he will order DOJ/FBI to act on his command This is dangerous/so is @realDonaldTrump-he’s not qualified

— Eric Holder (@EricHolder) October 10, 2016

In the USA we do not threaten to jail political opponents. @realDonaldTrump said he would. He is promising to abuse the power of the office

— Eric Holder (@EricHolder) October 10, 2016

Holder’s implied claim to rule-of-law purity is risible.

DOJ criminally prosecuted conservative commentator Dinesh D’Souza for a minor campaign finance violation — pushing a stiff jail term — while ignoring Obama’s hefty 2008 campaign transgressions.

Justice oversaw the illegal transfer of 1.25 million pages of conservative nonprofit’s tax returns including protected donor information from Lois Lerner to its criminal division during the 2010 midterms.

The feds also raided a guitar maker with Republican ties on bogus wood-importing charges while ignoring the same behavior from his Democrat-supporting rival.

And the House held Holder in contempt over ‘Fast and Furious’ obstruction.  

Current Attorney General Loretta Lynch met with former President Clinton for 30 minutes during the crucial charging-decision phase of the email investigation to supposedly chat about topics including Mr. Clinton’s golf game. And under her watch U.S. Attorneys have lied so openly in once case the judge wanted them retrained.

The email-scandal fallout should have left DOJ embarrassed and contrite. But justice was seemingly secondary to massaging a political problem. Given DOJ’s posture over the past eight years that is unsurprising. A special prosecutor could help find justice at Justice.

Jossey is a campaign finance lawyer in Alexandria, Virginia. Follow him on Twitter at @paulhjossey.

The views expressed by Contributors are their own and are not the views of The Hill.