The Special Counsel Who Indicted Trump Is No Democrat. They Never Are.

Ben Shapiro, conservative commentator and lead singer of an Alvin and the Chipmunks tribute band, has some thoughts about former President Donald Trump’s arraignment yesterday on federal charges in Florida. 

“When the Justice Department gets reduced to pure politics, you have a problem,” said Shapiro on his eponymous show. He continued:

Now I hear people screaming, ‘But you just said that Trump may have committed criminal activity here, the allegations against him are very strong.’ That’s true [but] the only way that you actually restore the credibility of the justice system is to have Republicans prosecute Republicans and Democrats prosecute Democrats. … If the basic line here is the Republicans are just supposed to accept that Republicans who are guilty of crimes get indicted, and Democrats who are guilty of crimes get slots on CNN and MSNBC, that is not a workable solution for anyone. … The double standard is what is going to destroy the credibility of the institution.

Shapiro is correct that there is a stunning double standard in the investigation and prosecution of prominent U.S. politicians. Where he went wrong was in claiming that up is down and black is white — i.e., that this double standard favors Democrats.

That’s because Democrats seem to be somehow, for all intents and purposes, barred from several key roles in the U.S. justice system, even under Democratic presidents. The Federal Bureau of Investigation was established in 1935 and has had eight directors in the subsequent 88 years. Literally none of them has been a Democrat. (This does not include figures who’ve served as acting director, generally for short periods.)

Similarly, no Democrat has been named as a special counsel (or special prosecutor or independent counsel, the names for similar earlier positions) for a significant investigation for 50 years. As The Associated Press puts it, special counsels are outside attorneys appointed by the attorney general when the AG perceives the Justice Department as “having a conflict or where it’s deemed to be in the public interest to have someone outside the government come in and take responsibility for a matter.” 

It’s impossible to know exactly why Democrats aren’t permitted to fill these positions. But Democrats of recent generations seem to be diehard institutionalists, desperately yearning for Republicans to accept that a “fair” system can find Republicans guilty, so they never appoint a Democrat. Meanwhile, Republicans couldn’t care less what Democrats think, so they also never appoint a Democrat.  

Take special counsels first. Jack Smith, who leads the prosecution of Trump, is a registered independent. One of his previous jobs was overseeing the Justice Department’s public integrity section. There he unsuccessfully prosecuted John Edwards, the 2004 Democratic vice presidential candidate, in a campaign finance case with some similarities to the charges Trump has been indicted for in New York state. The most Democratic thing about Smith is that his wife was one of three producers of a positive documentary about Michelle Obama.

The most recent Democratic special prosecutors for a prominent investigation date from the Watergate scandal. Archibald Cox, who’d been solicitor general in the Kennedy administration, was appointed in May 1973 and then fired by Richard Nixon five months later. According to New York Times columnist Anthony Lewis, “the Washington mill dismissed Archibald Cox as too soft.”

Cox was replaced by Leon Jaworski, a Texas Democrat — i.e., the kind of Democrat who’d voted for Nixon in 1960 and 1968, and in 1980 founded “Democrats for Reagan.”

As far as Democratic special counsels go, that’s pretty much it. Arthur Christy, who investigated President Jimmy Carter’s chief of staff Hamilton Jordan, was a Republican. Gerald Gallinghouse, who investigated Carter’s 1980 campaign manager Timothy Kraft, was a former Democrat who’d become a Republican a decade before his appointment. 

Next up was Lawrence Walsh, who ran the Iran–Contra inquiry during the Reagan and George H. W. Bush administrations. Walsh was a lifetime Republican, who’d been deputy attorney general in the Eisenhower administration and an early Ronald Reagan supporter. Republicans went absolutely berserk attacking Walsh and did everything possible to obstruct his work. (Interestingly, as of this writing, the Wikipedia page for Walsh falsely claims he was a Democrat.)

During the same period, Whitney North Seymour Jr. investigated Reagan deputy chief of staff Michael Deaver. Seymour was a Republican.

During the Clinton administration, the inquiry into the Whitewater affair was first run by Robert Fiske, a Republican. He concluded that White House aide Vince Foster had indeed committed suicide, rather than being taken out by one of the many assassins on Bill and Hillary’s payroll. Republicans believed this raised “questions about Fiske,” so he was replaced by Kenneth Starr. Starr, a Republican, somehow investigated Whitewater by digging into Clinton’s relationship with Monica Lewinsky, which led to Clinton’s impeachment. The Whitewater assignment was wrapped up in 2003 by Robert Ray, a Republican.

Another independent counsel was appointed during the Clinton administration to look into the FBI’s siege of Waco, Texas. The man chosen for the job (by Clinton’s attorney general) was John Danforth, a Republican.

Shockingly, the streak of Republicans was broken during the George W. Bush administration when Patrick Fitzgerald was appointed in 2003 to look into the Valerie Plame affair. Fitzgerald was a self-declared independent.

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Then it was back to Republicans. Robert Mueller, who was picked to head the investigation into any intersection between the 2016 Trump campaign and Russia, is a Republican. John Durham, appointed by Trump’s Attorney General William Barr to look at the origins of the FBI’s investigation into Trump and Russia, is a Republican. Robert Hur, chosen by Biden’s Attorney General Merrick Garland to investigate Biden’s handling of classified documents, is a Republican.

Other Republican figures who’ve held the position include Alexia Morrison, Larry Thompson, Arlin Adams, and Joseph diGenova — who’s such a big Republican that he was was hired by Trump to help overturn the 2020 election. But to be clear, it is not the case that literally no Democrat has been appointed to run such an investigation in the last five decades. There is definitely at least one: Curtis Emery von Kann, who was in charge of the crucial inquiry into Eli Segal, a White House assistant to Bill Clinton. Segal was in charge of AmeriCorps while simultaneously helping a nonprofit called Partnership for Public Service raise money, for free. Von Kann, who was a registered Democrat as of 1985, found that Segal had committed no wrongdoing.

Everything is crystal clear, however, when it comes to directors of the FBI. J. Edgar Hoover, who served in the position for 36 years, was formally an independent but privately a staunch Republican. His immediate successor Clarence Kelley, appointed by Nixon, was a Republican. 

Then Carter appointed William Webster, a Republican. Reagan appointed William Sessions, a Republican. Clinton appointed Louis Freeh, a Republican. George W. Bush appointed Robert Mueller, a Republican. Barack Obama appointed James Comey, at the time a Republican. (He’s now officially unaffiliated.)

Then Trump fired Comey and appointed the current FBI Director Christopher Wray, a Republican. When Biden took office, he kept Wray in place.

Democrats appear to have accepted that the rules forbid any Democrat from holding one of these positions because it just wouldn’t be fair.

Incredibly enough, these basic facts are rarely discussed in the corporate media. Democrats appear to have accepted that the rules forbid any Democrat from holding one of these positions because it just wouldn’t be fair. Meanwhile, Shapiro and other right-wing figures who cry out to the heavens about the inequity of our justice system somehow leave these facts out of their presentation. It’s enough to make a cynic suspect that even-handed justice is not their agenda at all.