The Complicated Path to a Special Counsel

The leaders of independent investigations are often in can’t-win situations.

Special Prosecutor Archibald Cox, shown at a press conference in Washington on Oct. 20, 1973, was fired by President Nixon after he objected to a proposed Watergate tapes compromise.
AP Photo
Sam Schwarz
Add to Briefcase
Sam Schwarz
May 10, 2017, 2:39 p.m.

Pres­id­ent Trump’s de­cision to fire FBI Dir­ect­or James Comey has spawned com­par­is­ons to Wa­ter­gate and re­newed whis­pers about im­peach­ment pro­ceed­ings. It’s also led to bi­par­tis­an calls for an in­de­pend­ent in­vest­ig­a­tion, led by a spe­cial coun­sel, in­to Rus­si­an med­dling in the 2016 elec­tion, as well as ties between the Trump cam­paign and Mo­scow.

But much to the chag­rin of the loudest voices, the pro­cess is none too simple. After the Wa­ter­gate scan­dal and through Pres­id­ent Clin­ton’s nu­mer­ous leg­al dif­fi­culties, clear le­gis­la­tion gov­erned the ap­point­ment of spe­cial pro­sec­utors. Yet since 1999, none ex­ists.

Today, there are two ways by which a spe­cial coun­sel can be ap­poin­ted.

In the more likely scen­ario, the at­tor­ney gen­er­al can simply ap­point a spe­cial coun­sel. As laid out in Sec­tion 600.1 of the Code of Fed­er­al Reg­u­la­tions, the at­tor­ney gen­er­al is to ap­point a spe­cial coun­sel “when he or she de­term­ines that crim­in­al in­vest­ig­a­tion of a per­son or mat­ter is war­ran­ted” and either a Justice De­part­ment in­vest­ig­a­tion “would present a con­flict of in­terest” or “it would be in the pub­lic in­terest to ap­point an out­side Spe­cial Coun­sel to as­sume re­spons­ib­il­ity for the mat­ter.” Since At­tor­ney Gen­er­al Jeff Ses­sions has re­cused him­self from the Rus­sia in­vest­ig­a­tions, this re­spons­ib­il­ity would fall to Deputy At­tor­ney Gen­er­al Rod Ro­sen­stein.

The second scen­ario would re­quire that Con­gress pass le­gis­la­tion re­quir­ing the ap­point­ment of a spe­cial coun­sel. This le­gis­la­tion would likely take its cues from the 1978 Eth­ics in Gov­ern­ment Act, which tasked pan­els of fed­er­al judges with ap­point­ing spe­cial coun­sels in cases in­volving spe­cif­ic gov­ern­ment of­fi­cials. The spe­cial-coun­sel clause of the law ex­pired in 1999 without be­ing reau­thor­ized. This scen­ario is less likely, as it would re­quire Pres­id­ent Trump to sign such a bill, or the sup­port of two-thirds of Con­gress to over­ride a pres­id­en­tial veto.

The 1978 eth­ics law came about after Wa­ter­gate, as Con­gress real­ized “these things tend to hit when you least ex­pect it,” and they needed a “set of ground rules,” said Ken­neth Gorm­ley, the pres­id­ent of Duquesne Uni­versity and the au­thor of books on Wa­ter­gate pro­sec­utor Archibald Cox and Clin­ton pro­sec­utor Ken­neth Starr. Dur­ing Wa­ter­gate, he said, Cox and At­tor­ney Gen­er­al El­li­ot Richard­son were mak­ing it up as they went, lit­er­ally “scrib­bling things on cock­tail nap­kins.”

That law ul­ti­mately ex­pired not over par­tis­an­ship, but be­cause law­makers from both parties real­ized that it was flawed.

“The stat­ute was al­lowed to die be­cause Re­pub­lic­ans and Demo­crats be­lieved that the trig­ger mech­an­ism was too low, [es­pe­cially] if the people who were ap­poin­ted were not pro­fes­sion­al,” said Joe Di­Gen­ova, a former U.S. at­tor­ney and former in­de­pend­ent coun­sel who in­vest­ig­ated the Clin­ton White House. “That happened too many times.”

Sen. Richard Blu­menth­al, who drew the ire of Pres­id­ent Trump’s Twit­ter fin­gers Wed­nes­day morn­ing, told CQ Roll Call that he is work­ing on a piece of le­gis­la­tion sim­il­ar to the 1978 le­gis­la­tion.

“No ques­tion that an in­de­pend­ent spe­cial pro­sec­utor is ne­ces­sary,” the Con­necti­c­ut Demo­crat tweeted Wed­nes­day morn­ing. “Noth­ing less than in­teg­rity of our justice sys­tem at stake.”

Al­though there is no longer a stat­utory re­quire­ment gov­ern­ing how the Justice De­part­ment ap­points an in­de­pend­ent coun­sel, Gorm­ley says the de­part­ment has now staked out a “middle ground,” where the pro­cess is still over­seen by the at­tor­ney gen­er­al (or in this case the deputy), but “there are re­quire­ments as to how that in­de­pend­ence is cre­ated.”

At face value, it might be ex­pec­ted that Ro­sen­stein, who has worked at the Justice De­part­ment for 27 years un­der pres­id­ents from both polit­ic­al parties, would ap­point a spe­cial coun­sel as to avoid any con­flict of in­terest. The pro­cess, however, could be com­plic­ated by no few­er than three on­go­ing con­gres­sion­al in­vest­ig­a­tions on the top­ic.

Both the House and Sen­ate In­tel­li­gence com­mit­tees have opened in­vest­ig­a­tions in­to Rus­si­an in­volve­ment in the 2016 elec­tion and each has been ex­pan­ded to in­clude po­ten­tial com­mu­nic­a­tions between Rus­sia and Trump cam­paign aides. The Sen­ate Ju­di­ciary Sub­com­mit­tee on Crime and Ter­ror­ism also has an on­go­ing in­vest­ig­a­tion in­to Rus­si­an in­ter­fer­ence in the elec­tion.

Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell said on the Sen­ate floor Wed­nes­day morn­ing that no spe­cial coun­sel should be ap­poin­ted by DOJ un­til these in­vest­ig­a­tions are con­cluded.

A new in­vest­ig­a­tion “could only serve to im­pede the cur­rent work be­ing done,” Mc­Con­nell said.

Di­Gen­ova dis­agreed with Mc­Con­nell, say­ing that a DOJ in­vest­ig­a­tion and a con­gres­sion­al in­vest­ig­a­tion can co­ex­ist without Con­gress step­ping on the FBI’s toes.

“The bur­eau is on auto­pi­lot with re­spect to something like this. … [Con­gress] won’t in­ter­fere; they’re afraid of their own shad­ow up there. They can barely put a com­pound sen­tence to­geth­er.”

In the event that Ro­sen­stein re­fuses to ap­point a spe­cial coun­sel and Con­gress is un­able to muster enough sup­port for the pas­sage of le­gis­la­tion, a third op­tion is avail­able. The Sen­ate could em­pan­el its own spe­cial con­gres­sion­al com­mit­tee, like it did in 1973 when it es­tab­lished the United States Sen­ate Wa­ter­gate Com­mit­tee. Re­pub­lic­an Sen. John Mc­Cain re­it­er­ated his sup­port for this route last night fol­low­ing the an­nounce­ment of Comey’s fir­ing.

“I have long called for a spe­cial con­gres­sion­al com­mit­tee to in­vest­ig­ate Rus­sia’s in­ter­fer­ence in the 2016 elec­tion,” Mc­Cain said in a state­ment. “The pres­id­ent’s de­cision to re­move the FBI dir­ect­or only con­firms the need and the ur­gency of such a com­mit­tee.”

If the hanker­ing from both law­makers and the pub­lic does yield the ap­point­ment of a spe­cial coun­sel, they could still be quite dis­ap­poin­ted with the res­ults.

“What I think people need to real­ize is [a spe­cial coun­sel is] not a pan­acea,” said Peter Zeiden­berg, who served as as­sist­ant spe­cial coun­sel in the pro­sec­u­tion of Scoot­er Libby dur­ing George W. Bush’s pres­id­ency. Un­less a coun­sel un­cov­ers the evid­ence they feel is ne­ces­sary to bring and win a crim­in­al case, no in­form­a­tion is made pub­lic.

“Their work, when done prop­erly, is done in secret, and if they de­cide at the end of the day not to in­dict, they don’t do a Jim Comey–style press con­fer­ence at the end ex­plain­ing what they found, who was in­volved, what their ra­tionale was for not char­ging, and what happened,” Zeiden­berg ad­ded.

Zeiden­berg also noted that the length of the pro­cess is likely to frus­trate both the pub­lic and law­makers.

“[Ro­sen­stein or Con­gress] could ap­point a spe­cial pro­sec­utor or spe­cial coun­sel and three and a half years could go by,” he said.

Con­gress, Zeiden­berg said, is more likely to con­duct an in­vest­ig­a­tion that would sat­is­fy the de­sires of the masses, be­cause the res­ults of their in­vest­ig­a­tions are made pub­lic.

For now, the loud voices are likely to grow even louder un­til a fi­nal de­cision is made. And when the de­cision is made, don’t ex­pect it to sat­is­fy every­one.

What We're Following See More »
CONFIRMATION SHOULD BE SWIFT
Ambassador Nominee: Russia Meddled in Election
5 hours ago
THE DETAILS

"President Donald Trump’s nominee to be ambassador to Russia was unequivocal Tuesday in calling out the federation’s interference in the 2016 election in the United States. 'There is no question—underline no question—that the Russian government interfered in the U.S. election last year, and Moscow continues to meddle in the democratic processes of our friends and allies,' Jon Huntsman Jr., told the Foreign Relations Committee."

Source:
AT U.N. TRUMP CALLS NUCLEAR DEAL AN “EMBARRASSMENT”
New Iran Policy Coming Next Month?
7 hours ago
THE LATEST
WILL NOW SUBPOENA HIM
Senate Intel Committee Cancels Cohen Meeting
7 hours ago
THE DETAILS
“MASSIVE SOURCE OF EMBARRASSMENT”
Trump Calls Out U.N. Members for Human Rights Violations
7 hours ago
THE LATEST
LEVELS AN IMPLICIT THREAT AT NORTH KOREA
Trump Calls Kim “Rocket Man” at U.N.
7 hours ago
THE LATEST
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login