Yielding to growing pressure, including the very recent firing of FBI Director James B. Comey – which some are analogizing to the “Saturday Night Massacre” which led to the appointment of Watergate special prosecutors – the Justice Department has appointed a special counsel to investigate possible coordination between Trump associates and Russian officials seeking to interfere with last year’s election.
The action came just as a formal application for the appointment was about to be filed, according to public interest law professor John Banzhaf, whose legal action was a significant catalyst in the appointment of the Watergate special prosecutors, and who also obtained an order by a federal judge requiring the appointment of another special prosecutor.
A draft of the formal application about to be circulated and then filed, which explains the legal basis and requirements for the appointment, as well as some of the underlying reasons why it had to be made, can be found at banzhaf.net/mueller.pdf. The new Special Counsel is former FBI Director Robert Mueller.
Banzhaf also notes that there is recent precedent for exactly such an appointment.
More than a decade ago, there were allegations that the Bush White House leaked the identity of a CIA operative, Valerie Plame. To avoid even the appearance of a possible conflict of interest, then-Attorney General John Ashcroft recused himself from any involvement, instead leaving decisions up to his then deputy attorney general (until recently FBI director), James Comey.
Comey, following the clear mandatory language of the regulation, appointed a special counsel to investigate the Plame matter. According to some, this set the new standard which should be followed in the current situation.
For example, former House Counsel Stan Bran said: “There was nothing that anything to do with what Ashcroft said or did in the campaign . . . He just decided to do this because of the mere fact that he was a political appointee of the president. . . .That’s the standard now. I think the attorney general of any stripe in any administration is in an untenable position of trying to conduct an investigation or even having people report to him when that investigation involves the president or his aides.”
Banzhaf notes that the new special counsel does not enjoy complete independence from possible pressure or other influence from President Trump or his associates, but his conclusions are likely to be regarded as less partisan than any investigations conducted by a divided Congress.
And even the original special prosecutor, Archibald Cox, was not completely independent, since he was fired as a result of the actions of then-president Richard Nixon when his investigation proved to more dangerous and intrusive than had originally been anticipated.
So far, the following persons closely associated with Trump are known to have Russian connections: Paul Manafort, Ret. Lt. Gen. Michael Flynn, Carter Page, Jeff Sessions, Jared Kushner, Donald Trump Jr., Rex Tillerson, Wilbur Ross, Roger Stone, J.D. Gordon, Michael Caputo, Rick Gates, Michael Cohen, Ivanka Trump, Felix Sater, George Papadopoulos, and Erik Prince.