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.
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Sam Schwarz
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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.

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