It's past time for a special prosecutor

Story highlights

  • Paul Callan: A special prosecutor and a new FBI director need to take over email probe
  • Investigation should be handled "quietly" and "in accordance with legal ethics," he says

Paul Callan is a CNN legal analyst, a former NYC homicide prosecutor and currently is "of counsel" to the New York law firm of Edelman and Edelman, PC, focusing on wrongful conviction and civil rights cases. Follow him @paulcallan. The views expressed in this commentary are his own.

(CNN)The time has come for President Obama to get off the Clinton campaign trail, take a deep breath and restore public confidence in the integrity of the investigation into Hillary Clinton's emails.

How? Appoint a special prosecutor and a new FBI director.
Lately, the FBI, while acting without the customary supervision of the Justice Department, appears to be a runaway train on a collision course with the concept of fairness in next week's presidential election. Democratic Senator Harry Reid and former White House ethics counsel Richard Painter have accused FBI Director James Comey of violating the Hatch Act by illegally using his office to influence the election.
While the claim of a Hatch Act violation is a stretch, the appointment of an independent prosecutor and the replacement of Comey are nonetheless urgently required, if not outright overdue. The tangled relationship between the Clintons and Attorney General Loretta Lynch should have prompted appointment of an independent special prosecutor long ago..
Paul Callan
Here's where we are. The election is next week. The FBI looks disoriented and unfocused under Comey's leadership. He has unquestionably made confusing and inappropriate remarks regarding the email investigation. The FBI Director's off-the rails letter about "reopening" the investigation clearly violated Justice Department policies prohibiting criminal-investigation announcements in the 60 days prior to an election. It was also fundamentally unfair to both the candidates and the voters.
And it isn't just the issue of fairness President Obama needs to address with a special prosecutor. It's the utter chaos both the Justice Department and the FBI have unleashed on the public.
Citizens who have not yet voted have to be wondering "Is Trump right about her? Is Clinton really "Crooked Hillary?" Meanwhile, those who support her are reassuring there is nothing to worry about and Secretary Clinton herself is snapping back into her customary defensive position while aggressively campaigning. She has sensibly recognized there is no time for victory laps while Comey is issuing statements which induce more confusion and consternation than clarity.
The drama could not be thicker, or more ironic. The previously privacy-obsessed Secretary Clinton is now calling for a public reveal of all the new emails, mimicking a move crafted and perfected by her hated enemy, WikiLeaks. Heaven help us all, since serial sexter Anthony Weiner, estranged husband of top Clinton aide Huma Abedin, may be the source of the new emails and computer in question.
Where has the Justice Department been in this fiasco? Is anyone providing adult legal supervision of the investigation given its importance in one of the most bitter and contentious presidential races in modern history? The answer to that question is a disgraceful no.
Normally, the Public Integrity Section (PIN) -- a special unit of career Justice Department prosecutors who supervise investigations in sensitive political investigations -- would be steering the ship.
But their authority was effectively neutered on the tarmac of an Arizona airport on June 29th when Bill Clinton paid a surprise visit to Attorney General Loretta Lynch (at the time, the cabinet officer in charge of the investigation of his wife's emails).
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The Attorney General should have had the good sense to swiftly terminate the completely improper visit. A smile and a reminder that the meeting was inappropriate under the circumstances would have saved the nation the agony it will endure during this election's final week. Instead General Lynch, as she is properly addressed, proceeded with the airport meetup -- though she would later assert that nothing but golf and grandchildren were discussed.
The airplane visit, regardless of conversation specifics, had to be a palpable reminder to Lynch that she "owed" the Clintons. Bill Clinton was the president who started Lynch on the road to national prominence when he appointed her to the very powerful position of US Attorney of the Eastern District of New York. After she handled numerous high-profile matters in that role, President Obama couldn't help but notice, later appointing her as America's first African-American, female Attorney General.
In the aftermath of the improper tarmac meet, Lynch had the good sense to recuse herself from her normal decision-making responsibilities in the Clinton email matter. But she failed to designate an independent prosecutor to take her place -- a vacuum FBI director Comey later filled, to the recent and disastrous result.
Comey, the top federal cop in the sensitive investigation, was given virtual carte blanche in handling the case. He has been all-powerful but powerfully ineffective in shepherding a fair investigative process. Good prosecutors and cops finish investigations before making "close case" recommendations. They also act in secrecy to protect the investigative process, to encourage witnesses to speak freely and to protect the innocent from the stigma of false allegations if the investigation leads to nothing but rumor and innuendo. With his actions in July and again in October, Comey has violated these important principles.
It is time for this breach of American democratic protocol to end. President Obama should direct a three-judge federal panel to designate an independent prosecutor with a sterling reputation to assume supervision of the Hillary Clinton email investigation and related matters.
The investigation should be handled in accordance with legal ethics: quietly, efficiently, and according full constitutional rights to "targets" as well as innocent individuals whose lives and emails may become collateral damage if care is not taken. And we need a new acting director of the FBI with impeccable ethics credentials to assist this independent prosecutor.
It's unfortunate that any investigation is not likely to be concluded until well after the election, but finding justice rather than a headline often takes time. And if we elect the wrong person, we will be impeaching the right person under the very same beautifully crafted US Constitution that should be our new special prosecutor's guide to a fair and complete investigation.
If Donald Trump wants to keep things fair and equitable, perhaps he should release 60,000 of his own personal emails and the computers of his top aides as well. I'll bet the special prosecutor will find some interesting reading there.