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chapter 5 More Political considerations Departed Officials, Looming Elections, and the Influence of Partisan Opposition An attorney general who is considering whether or not to appoint a special counsel or independent prosecutor is swimming in dangerous waters.The issues that he or she must sort out are many and complex, and the consequences of even one misstep along the way can be profoundly damaging. Three concerns are conspicuous among those that must be taken into account in this decisionmaking process. First is the political status of the official to be investigated; second, the timing of the investigation; and third, the extent to which united or divided government may affect the proceedings. 1. The political status of the official in question. When assessing the political context of a prosecution, the attorney general must of course consider the positions held by the targeted individuals, which are addressed extensively in chapters 3 and 4. Additionally, he or she must weigh (1) whether the targeted official owed his or her original appointment to the current president rather than to a past president who has left the scene, (2) whether the targeted official maintains strong partisan connections to the current president, as opposed to those who hail from the opposition party, and (3) whether the targeted official still holds the position or works in the office in which the misconduct is alleged to have taken place. Sometimes officials remain in the executive branch working in a different capacity; in other cases they may have left the administration altogether. Special prosecutor and independent counsel provisions tend to assume that misconduct has emanated from someone who still remains in a position to pose conflicts of interest.1 Clearly those who continue to hold the same public office in which they were accused of misconduct may be treated differently from those who no longer maintain their position of trust. 2. The timing of the investigation. As a president’s reelection campaign approaches , his administration begins to focus on expressly political concerns, More Political Considerations • 115 such as serious primary challengers to the president, and perhaps on undecided voters who may prove crucial to the looming contest. Of course scandals and allegations of wrongdoing can derail even the most carefully crafted political plans, especially when the wrongdoing implicates either of the two people at the top of the ticket. As much as the attorney general may prefer adhering to normal Justice Department protocols under such circumstances, the temptation to refer an issue to a special prosecutor can be overwhelming. With respect to timing, it should also be noted that special prosecutors are not hampered by other cases demanding their attention and forcing compromises and shortcuts to balance limited resources. As a result, these specially appointed outsiders tend to take longer than other attorneys in building their cases. Thus if the appointment of a special prosecutor goes forward, critics may accuse the attorney general of jettisoning executive accountability to a distant point in the future when the election is safely behind the president he or she serves. On the other hand, if no appointment goes forward, accusations of a cover-up will fly, and the report the attorney general issues to justify the decision not to appoint may be dismissed as politically motivated. In sum, the attorney general’s exercise of discretion will receive scrutiny, no matter what he or she decides to do. 3. The influence of partisan opposition in Congress. Finally, an attorney general deciding whether to name a special counsel must consider whether the government is divided or united. During the course of a preliminary investigation, the legislative branch may become the attorney general’s best friend—or worst enemy. When the opposition party controls one or both houses of Congress, calls for a special prosecutor may become heated, especially during politically charged hearings. In the hands of the president’s own party, of course, that same Congress will offer little such rhetoric, save for the occasional barkings of a frustrated minority. The position of attorney general is at its core a political one, appointed by the president and confirmed by the Senate; even a neutral, outer circle attorney general cannot ignore the political context that surrounds his or her office. United party government means that a special prosecutor may offer the only real opportunity to investigate administration wrongdoing, while divided government may threaten to politicize the prosecution, even when it is the hands of an independent counsel. The attorney general must take all these (and other...

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