If You Really Want a special prosecutor, You Must File a Formal Request
WASHINGTON, D.C. (May 9, 2017) – In the wake of the firing of FBI Director James Comey, dozens of politicians are suddenly clamoring – or at least tweeting – for the appointment of special prosecutor, but none seems to have taken the logical and necessary next step of filing a formal request for such under 28 CFR 600.1.
“Put up or shut up,” taunts public interest law professor John Banzhaf, who played a major role in getting a Watergate special prosecutor appointed, and went to court and obtained a court order for the appointment of a second one.
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“Now it’s even more important that an independent special counsel is appointed to investigate the Russian interference in our elections,” said New Jersey Senator Cory Booker.
“In case the need for an independent special prosecutor to investigate #TrumpRussia ties wasn’t clear enough already…it sure is now,” said Oregon Senator Jeff Merkley.
“If we don’t get a special prosecutor, every American will rightfully suspect that the decision to fire #Comey was part of a cover-up,” Schumer said.
“This is Nixonian,” said Pennsylvania Senator Bob Casey. “Deputy AG Rod Rosenstein must immediately appoint a special prosecutor to continue the Trump/Russia investigation.”
New Mexico Senator Martin Heinrich said, “President Trump’s dismissal of FBI Director Comey smacks of President Nixon’s Saturday Night Massacre. … If this is an effort to stop the investigations into Russian collusion with the Trump campaign, it won’t succeed.” And Hawaii Senator Brian Schatz said the nation was in “a full-fledged constitutional crisis.”
But will any of them step forward and do more than Twitter, Banzhaf asks.
While there is no longer a statutory scheme for the appointment of an independent counsel, a Justice Department regulation [28 CFR 600.1], which replaced the statute, does require that “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, WILL appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and that investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and that under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.” [emphasis added]
Moreover, there is a very clear precedent for just 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 yesterday FBI director), James Comey. Comey, following the clear mandatory language of the regulation, appointed a special counsel to investigate the Plame matter.
“Since existing law seems to mandate such an appointment under these circumstances, the logical first step for those who really want such a special counsel would be to make a formal legal request. Should that not produce the desired result, those concerned should sue, as I and several others were able to do,” suggests Banzhaf.
Filing a formal legal request puts great pressure on an official to act, and a denial – or even a refusal to act – can often be litigated, notes Banzhaf, whereas general cries on Twitter create little real pressure, and an denial or refusal to act cannot give rise to any kind of law suit.
If no one acts, we are likely to have banana republic justice, charges Banzhaf.
So, just as in many banana republics, a major scandal involving the head of government and his family and cronies is going to be investigated by persons he hand picked when the facts demonstrating the need for an investigation were already well known, says Banzhaf.