Special Counsels And The Javert Complex

Unchecked power is a dangerous thing.

(Photo by Win McNamee/Getty Images)

(Photo by Win McNamee/Getty Images)

Be careful what you wish for.

I know that what I am supposed to do right now is what everyone but Donald Trump is doing right now — praise the appointment of Robert Mueller as a special counsel in the Trump investigation. I know that the President appears to have been interfering so much with the Russia investigation that it left the Justice Department, and a deeply honorable man like Rod Rosenstein, little choice but to do this. I know that thinking people everywhere are supposed to just say, “Finally! Someone who is independent will be able to get to the bottom of this!”

But then I think about history. I think about the fact that the last time we appointed the straight-arrow special counsel with unquestioned integrity, that person engaged in a witch hunt against Scooter Libby, putting a good man in jail for no reason. (And I promise I’m not just saying that because my law partner’s father was his lawyer.)

Many of the people who rejoice at Mueller’s appointment are no doubt the same people who think that Ken Starr went too far. (And many of those same people thought he was a good choice at the time, too.) And please don’t get me started on the Iran-Contra investigation and what Lawrence Walsh did there.

To be clear, Trump left Rosenstein with little choice. This may be a necessary evil, but we should be aware that it could still wind up being an evil.

As a white-collar lawyer, I am congenitally suspicious of government power. And I am doubly suspicious of it when it is all but unaccountable except in the most technical sense. I have no doubt that Mueller will work hard, be honest, and pursue this investigation to the best of his ability.

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But it’s not Donald Trump who I worry could be unfairly caught up in this net. It’s other people who are less important and whose names you have probably never heard. It’s people that may be dragged into an investigation by someone who is vested with the power of Javert and feels like he has to find someone responsible for something.

Because remember, this won’t be just Mueller. He will also put together a team. That team will inevitably consist, at least in part, of some relatively young, highly credentialed former federal prosecutors who may have been a little bored in private practice and see this appointment as a way to do something interesting and make a name for themselves. This is a plum job — one that will likely be in the first sentence of someone’s law firm bio when they’re done.

The more people who get charged, the bigger a deal this investigation will be — and the better it will look in someone’s bio.

Unchecked government power — and make no mistake, a special counsel’s power is essentially unchecked — is a scary thing. So while part of me rejoices at the fact that an honest man has been assigned to get to the bottom of all this, another part of me worries that in the end, the only people who will pay any price are the unimportant ones. The ones who don’t give the answers that the government wants and end up getting charged with false statements or obstruction of justice. The ones who can’t quite afford to hire a good enough lawyer to cut the right deal. The ones that the government believes just aren’t being sufficiently helpful.

None of this, of course, is to suggest that Bob Mueller is not an honest man. Pat Fitzgerald is an honest man. Ken Starr is an honest man. Lawrence Walsh was an honest man. But unchecked power can go to the head of even the most honest man, and especially the people who work for them, in unique ways. So while I ultimately agree that we probably had to get here, we should be very careful, and more than a little worried, about where we go from here.

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Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.