Vail Law column: The appointment and role of a special prosecutor
May 23, 2017
On May 17, Assistant Attorney General Rod Rosenstein appointed former FBI Director Robert Mueller as special prosecutor to look into the Trump administration's alleged Russia connections.
The investigation deals with a possible collusion between the Trump campaign and Putin's operatives, who it appears interfered with the 2016 presidential election. What is less clear is whether or not the Trump campaign or any of its operatives danced a Troika with Russian meddlers who intended to give the presidency to Trump.
But what, exactly, is a special prosecutor?
A prosecutor is one who pursues criminal charges against others on behalf of the government. Prosecutors are attorneys who work for the government on a local, state or federal level. They represent the public interests and work with law enforcement to bring accused criminals to justice.
A special prosecutor, or the more hoity-toity "special counsel," is an attorney appointed for a limited or special purpose. Like a "regular" prosecutor, he is tasked with nosing about to see if a crime has been committed and, if he believes one has, then it's his job to go after the suspected criminals to bring them to account.
In the particular circumstance of the Russia investigation, the attorney general's office or Congress could appoint a special counsel. Appointment by Attorney General Jeff Sessions himself would, of course, have raised some hackles, as Sessions was caught up in some "misremembered truths" about his dealings with the Russians during the campaign and so has recused himself from further involvement.
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That justification notwithstanding, the Department of Justice, which Sessions heads as the top law enforcement officer in the nation, has a rule that would prevent him having any role in any special counsel investigation.
The rule provides that, "No Department of Justice employee may participate in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution, or who would be directly affected by the outcome."
So that settles that.
Ethics in Government Act
The other path to a special counsel goes through Congress.
To get there, Congress would have had to pass a law as it did in passing the Ethics in Government Act in 1978. That law provided for a three-judge panel based in the United States Court of Appeals in Washington, D.C., which, in turn, was empowered to appoint the special counsel.
That law was reauthorized several times until its sunset in 1999 and was used to anoint Kenneth Starr as the prosecutor in the Bill Clinton investigation.
The sticky wicket is, however, that the law would have to be signed by — you guessed it — the president himself. Or, if he instead exercised his veto power, then it would have to be overridden by a two-thirds majority in both the Senate and House of Representatives. When the president's own party controls both houses, you can figure the likely outcome for yourself.
In 1994, then-President Clinton reauthorized the 1978 law notwithstanding that a number of alleged scandals were percolating vigorously about him. What would be the chances of President Trump doing the same? Fat chance.
Far Reaching Tentacles
Instead, Congress could launch its own investigation into the executive branch even without legislation because such authority is implicit in the appropriations power. If Congress decided to act on its own, it is much more likely that it would establish a commission or committee to investigate, rather than passing ethics legislation, which is where I was going, above.
As special counsel, Mueller's work will likely span months, if not a year or more, and the tentacles of investigation could reach far, wide and deep, including investigation into classified materials. It would also likely reach into CIA and FBI files, as well as the salacious dossier delivered by the Brits.
If Mueller finds fire where the White House claims there's only smoke, then the attorney general would make the call as to whether the evidence was sufficient to bring charges. If his powers had arisen by virtue of the Congress, then the results would be referred to Congress, but the decision would likely circle back to the attorney general.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.