Trump Special Counsel More Powerful Than Predecessors; An Unusual Appointment Document Targets Former President
WASHINGTON, D.C. (November 21, 2022) – John Smith, the special counsel just appointed by Attorney General Merrick Garland, will have more prosecutorial power and authority than other recent special counsels, and the order appointing him seems clearly aimed at former president Donald Trump, according to at least two well known law professors.
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When Acting Attorney General Rob Rosenstein appointed Robert Mueller to oversee an investigation of allegations of Russian interference in the 2016 presidential election and related matters.
The order making it official said that Mueller was authorized "to prosecute federal crimes arising from the investigation of these matters," but only "if the Special Counsel believes it is necessary and appropriate." [emphasis added]
Similarly, Attorney General Bill Barr's order appointing Special Counsel John Durham expressly provided that "If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from his investigation of these matters." [emphasis added]
Thus both prior appointments expressly limited the prosecutorial authority of these special counsel to situations where it was both "appropriate" (e.g., if there was sufficient evidence) and "necessary".
A substantially higher bar or limitation since there may be many situations is which a prosecution might be appropriate but not deemed "necessary" after various discretionary policy factors are weighed.
In addition, the predecessor Independent Counsel Statute, which has been permitted to lapse, provided that "an independent counsel appointed under this chapter" was authorized to participate "in court proceedings and engag[e] in any litigation, including civil and criminal matters, that such independent counsel considers necessary." [emphasis added]
Thus, in what is clearly not simply an inadvertent oversight, or mere negligence in a failure to incorporate a key word which had been included in prior authorizations, Garland deliberately authorized Smith to prosecute crimes even when it was not deemed "necessary".
Writing in his order that "The Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters" even if does not appear to be necessary to do so.
A further analysis of the text of the order makes it clear to Josh Blackman, a constitutional scholar and professor of law at South Texas College of Law, and John Banzhaf, a professor of public interest law at George Washington University Law School, that the appointment is aimed squarely at Trump.
For example, although Smith is expressly authorized to investigate "any person or entity [who] violated the law in connection with efforts to interfere with the lawful transfer of power," "this authorization does not apply to . . . investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021." Trump, of course, was not physically present at that event.
So, in Blackman's words, "The prosecution need not be 'necessary.' Smith has a green light to indict Trump." And Trump is very angry, but not for the reasons he has stated. claims Banzhaf.
Trump's Fear
Despite calling it a "never ending witch hunt." a "rigged deal," and a "horrendous abuse of power." Trump's real reason for fearing the appointment of a special counsel to oversee all federal investigations and possible prosecutions of him is that it invalidates what would otherwise be his Get-Out-Of-Jail card, suggests Banzhaf. Here's why.
Friday's appointment of Smith follows receipt by Garland of a formal legal demand for such an appointment filed Tuesday night after Trump's announcement that he will be running for president in 2024, possibly against President Joe Biden, says Banzhaf.
Banzhaf's previous legal filings helped obtain special prosecutors for former president Richard Nixon, a court order requiring the appointment of an independent counsel to investigate Debategate, and an ongoing grand jury investigation of Trump in Georgia.
His filing of the Trump special counsel demand document started a legal clock ticking which would have required Garland to either make the appointment or promptly explain his refusal.
As Banzhaf's legal filing noted: "This constitutes a 'written application' or 'other request' which requires, pursuant to 5 U.S. Code § 555, that the Justice Department 'provide prompt notice,' as well as a 'brief statement of the grounds for denial,' if it is denied and no such an appointment is made." [emphasis added]
The filing of the formal demand document, by someone who has been so successful with such filings in the past, and who has demonstrated a willingness to go to court for enforcement if necessary, was probably one factor among several behind Garland's reversal of his prior position and new decision to make the appointment.
If Garland, after Trump's announcement, and faced with a formal legal demand, still refused to make an appointment, his clear violation of the legal duty imposed upon him by 28 CFR § 600.1 would have provided a compelling argument for a judge to quash any federal indictment which might be obtained - and/or overturn any conviction which resulted - in violation of the binding law, argues Banzhaf.
In other words, a continued refusal to follow the law mandating that he "will" appoint a special counsel if prosecution under his own direction "would present a conflict of interest" would have given Trump a get-out-of-jail card - the strongest possible defense he would have under the circumstances, argues Banzhaf.
The use of the word "will" in the controlling regulation - rather than more permissive words such as "shall," "should," or "may" - emphasizes that the legal duty is mandatory, with no room for the exercise of any discretion.
Although pundits may speculate about the extent to which the appointment may or may not shield Garland and the Department of Justice from criticism, or satisfy critics who believe political considerations are behind some decisions such as the Mar-a-lago raid, Garland legally has no discretion to consider such issues in deciding whether or not to make the appointment.
The law requires that he appoint a special counsel if a simple condition is met - if prosecution under his direction "would present a conflict of interest" - and that's what a judge would rule if the matter came before a court, says Banzhaf.
The legal filing noted that failing to appoint a special prosecutor now would give Trump a "Get-Out-Of-Jail Free" card if he were ever convicted, More specifically, the filing warned:
"A continuing refusal to follow the clear and unambiguous mandate of 28 CFR § 600.1 to appoint a special counsel would provide a very strong argument to quash any indictment and/or reverse any conviction of Trump which might be obtained with a prosecution conducted by the Department of Justice.
A result which would further devastate an already divided and very suspicious country, even to the point of possibly causing violence if a judge were to rule that a conviction of Trump had been obtained illegally."
It also pointed out that "The appointment of a special counsel would help assure millions of Americans convinced that Trump is being treated unfairly - fears recently rekindled by a decision to raid Trump's Mar-a-Lago residence rather than rely upon a subpoena or further negotiations to retrieve documents - that vital prosecutorial decisions are not being made by a person who would almost certainly would be fired if Trump's bid for the presidency isn't derailed by further investigations and/or prosecutions."
At the very least, Garland, who must obey any order issued by Biden, cannot fairly oversee the investigation and possible prosecution of a person whose election would probably cost him and his boss their jobs, argued Banzhaf.
Instead, what Garland has done is to follow the clear language of the law, which mandates that he "will" appoint a special counsel if prosecution under his direction "would present a conflict of interest."
And then insure that "Smith has a green light to indict Trump" by deliberately omitting the mandate that such a prosecution be seen as "necessary" - a requirement which would have limited Smith's authority by requiring him to exercise considerable discretion, Banzhaf concludes.
