Following President Trump’s brazen decision to fire FBI Director James Comey, many Democrats and even some Republicans have called for a special prosecutor to resume the agency’s probe into whether members of Trump’s campaign and transition team coordinated with Russia to meddle in the 2016 election.
A special prosecutor can be appointed by the Justice Department with the mission of investigating a specific potential crime and possibly bringing charges when the existing protocols inside the justice system are considered compromised or inadequate.
Doing so, however, may not be easy.
“Basically, you have to meet some very specific criteria, or you have to enact a statute to create another U.S. Office of the Independent Counsel,” Richard Painter, who served as President George W. Bush’s chief ethics lawyer from 2005 to 2007, told the Daily News.
Since 1999, when Congress let a law lapse that had been designed to create another U.S. Office of the Independent Counsel, the U.S. attorney general has had the power to appoint an outside “independent counsel” in certain situations.
But to do that, three criteria must be met: The attorney general must find that a “criminal investigation of a person or matter is warranted,” that an investigation by the current Justice Department “would present a conflict of interest for the department or other extraordinary circumstances,” and that “it would be in the public interest to appoint an outside special counsel to assume responsibility for the matter.”
In this case, the role of the attorney general would be carried out by Deputy Attorney General Rod Rosenstein, because Attorney General Jeff Sessions recused himself in March from “any existing or future investigations of any matters related in any way to the campaigns for President of the United States” — including any current or future probes into Russian involvement inside the Donald Trump campaign — after news emerged he’d met with Russian ambassador Sergey Kislyak during the race.
If the three criteria were met — and if Trump did not interfere with the appointment process — the special prosecutor would have the “full power and independent authority to exercise all investigative and prosecutorial functions and powers” of the attorney general, according to Department of Justice guidelines.
If the criteria are not met, or if Rosenstein or other Justice officials decided not to pursue an appointment, the next FBI director, who reports to Rosenstein, would simply take over the investigation.
Another, but far less likely, option would be for Congress to pass a new law to create a different independent counsel.
Prior to 1999, a statute had been on the books dictating a different way to create an “independent counsel” that involved a complicated process, including the attorney general petitioning a three-judge panel.
Congress allowed that statute, which was enacted after the Watergate scandal, to lapse after Kenneth Starr completed his investigation into former President Bill Clinton.
Starr’s probe was created initially to look into the suicide of Vince Foster and the Whitewater real estate scandal, but later morphed into a whirlwind exploration of Clinton’s extramarital affairs.