Calls for Special Prosecutor Driven by Politics, Not Law


ACRU Staff


May 17, 2017

This column by ACRU General Counsel Ken Klukowski was published May 13, 2017 by Breitbart.

Calls for a special counsel to pursue a possible Russia investigation are dead wrong on the law, as are calls for Attorney General Jeff Sessions not to advise President Trump on selecting a new FBI director. This is politics at its most cynical.

The U.S. Department of Justice (DOJ) leads investigations, not the Federal Bureau of Investigation. The FBI conducts the investigation under the supervision of either U.S. attorneys’ offices or Main Justice. Supervising the FBI is a central part of any attorney general’s job. And special counsels are never independent of DOJ, because independent counsels (which are different from special counsels) are unconstitutional, which is why the law that formerly authorized them has not existed for almost 20 years.

The deputy attorney general is supervising any possible FBI investigation into Russia.

Every FBI director serves at the pleasure of the president, so President Trump had undisputed legal authority to fire Director Comey on Tuesday. Months earlier, Attorney General Jeff Sessions recused himself from any investigation involving possible ties between the Trump campaign and Russia, a move that Sessions made to ensure public confidence in the investigation, since he was not legally or ethically required to step aside.

As a result, any Russian investigation came under the supervision of the U.S. attorney for the Eastern District of Virginia — Dana Boente, who was appointed by former President Barack Obama — then was taken up by Deputy Attorney General Rod Rosenstein once he was confirmed as second in command at DOJ.

DOJ leads legal investigations, not the FBI. Only DOJ can empanel a grand jury, ask a court for discovery, or initiate a prosecution. FBI investigators answer to the prosecutors at DOJ. Comey was never in charge of any investigation; in the absence of the attorney general, his role is filled by the acting attorney general: first Boente, now Rosenstein. So removing Comey does not stop any investigation.

Moreover, Comey’s powers to carry out investigations (under DOJ supervision) have transitioned to Deputy Director Andrew McCabe, who has ties to the Democratic Party, and longtime Clinton ally Virginia Gov. Terry McAuliffe in particular. This is hardly cause for concern if you want the Trump campaign investigated.

In summary, Comey was conducting any possible investigation last week, supervised by Rosenstein. Today, McCabe is conducting any possible investigation, supervised by Rosenstein. DOJ and the FBI have the same operational relationship today that they had a week ago. Nothing has been disrupted.

But Democrats are nonetheless crying foul, demanding a special prosecutor be appointed. Some also argue that Sessions should not play any role in helping Trump find a new FBI director. Both contentions are absurd.

Overseeing the FBI is a central part of any attorney general’s job.

Sessions’s recusal from a possible Russian investigation is not a recusal from supervising the FBI. Over 110,000 people work at DOJ under the attorney general. The FBI is a component agency of DOJ, and employs 35,000 people. Overseeing the FBI is an enormous part of the attorney general’s duties. Suggesting that Sessions’s recusal means he cannot oversee the FBI or supervise FBI leaders would mean that Sessions cannot do his job.

That is obviously not what Sessions said, and no reasonable person would suggest that his recusal means that. Instead, recusal here means merely that he would not make decisions on whether to start an investigation into Russian ties, supervise the actions of FBI leaders and agents as they investigate, execute search warrants, gather evidence, and interview witnesses, nor review the reports of any investigation’s progress regarding Russia, or decide whether to bring charges to anyone in the president’s orbit when it comes to Russia. It does not extend to any other aspect of his duties as attorney general.

One of those duties is advising the White House on who Trump should consider for top positions at DOJ and DOJ component agencies. Again, the FBI is a leading component of DOJ. Counseling the president on who should lead the most powerful and prestigious police agency in the world is one of the most important things any attorney general can do. Such advice is not about Russia; it is about thousands of operations and investigations that the FBI currently has underway, or will conduct during the next director’s tenure.

Independent counsels do not exist anymore because they were unconstitutional.

Another fake-news strawman echoed by various outlets this week is the talk about an independent counsel. They do not exist. They did for a couple of decades, until both parties decided that they were a bad idea, and on a bipartisan basis allowed the federal statute authorizing independent counsels — the Ethics in Government Act of 1978 — to expire in 1999. Independent counsels have been illegal for 18 years now.

In fact, even when they were authorized by statute, independent counsels were always illegal. They are unconstitutional, for all the reasons the late Justice Antonin Scalia explained in his historic dissent in the 1988 Supreme Court case Morrison v. Olson.

“The Founders conspicuously and very consciously declined to sap the Executive’s strength in the same way they had weakened the Legislature: by dividing the Executive power,” Scalia explained. “Proposals to have multiple executives, or a council of advisers with separate authority were rejected.”

Astounded by such an explicit violation of the Constitution’s separation of powers, Scalia continued:

Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Article II of the Constitution begins, “The executive Power shall be vested in a President of the United States of America.” The iconic Scalia emphasized that when Article II vests the executive power of the government in the president, “this does not mean some of the executive power, but all of the executive power.”

The majority of the Court in Morrison unanimously agreed with several of Scalia’s points, with Chief Justice William Rehnquist acknowledging, “There is no real dispute that the functions performed by the independent counsel are ‘executive.’ ”

No reasonable person could deny that such operations must be part of the Executive Branch. “Governmental investigation and prosecution of crimes is a quintessentially executive function,” Scalia wrote.

That being so, every federal prosecutor must answer to the president. “We should say here that the President’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law,” Scalia continued, “and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.”

So for a time there were prosecutors acting independently from the
president and attorney general, but were in violation of the Supreme Law of the Land. After Scalia’s passing, Justice Elena Kagan remarked in a tribute that his Morrison dissent gets better every time you read it. Liberals and conservatives alike hold a consensus view that there is no such thing as an independent counsel under the U.S. Constitution.

The deputy attorney general is overseeing any investigation, so a special counsel is not warranted.

That only leaves special counsels then, not independent counsels. Special counsels are still part of DOJ’s structure. While their operations are conducted differently from normal investigations, a special prosecutor is still appointed by the attorney general, and can be removed by him or by the president.

Federal regulation, at 28 C.F.R. § 600.1, provides:

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

There is no conflict of interest for DOJ here, and no one has explained how the public interest otherwise demands breaking from normal investigative procedure. That was true for allegations involving Russia, and it is certainly true for Comey’s firing. Presidents dismiss appointees all the time, replacing them with others. Personnel is policy. When the American people elect a president, they validate his making thousands of personnel decisions over a four-year term to carry out his policies.

On April 25, Rosenstein was confirmed by the Senate as deputy attorney general by an overwhelmingly bipartisan vote of 94-6. Every senator knew that Rosenstein would both oversee any Russian investigation and would be the immediate superior of the FBI director for all investigations and operations. (FBI directors are a direct report to the deputy AG, not the AG directly.)

With Rosenstein’s quarter-century of public service under presidents of both parties — including appointed as the U.S. attorney for Maryland by Obama — both parties expressed full confidence in Rosenstein’s ability to faithfully handle these matters in a nonpartisan manner.

Nothing has changed.

This is hyperpartisan politics at its worst.

How then, does one explain the hyperventilating and overwrought rhetoric on this issue? This is not about law. It is about politics.

The president’s political opponents sense an opening, and are trying to create a controversy where none exists. The same Democrats who in 2016 called for Comey to be fired now say it is a constitutional crisis that a president has complied with their request. The man they overwhelmingly confirmed to take the position at DOJ that would oversee any possible investigation into Russia (since Sessions was already recused) is still in complete control, yet now they frantically fret, incredulously claiming that no one is in control. The FBI’s machinery has temporarily come under the control of an acting director with closer ties to their own party than Comey ever had, yet to hear them you would think that the White House has taken direct charge over every FBI agent and operation.

Politics touches upon everything in Washington, but some things should aspire to be nonpartisan. The military, intelligence, and domestic law enforcement are three areas where traditionally both parties rally behind the president, recognizing that these are purely executive matters with national security dimensions, and that the United States has only one chief executive at a time.

The opposition party has taken opposing the elected government to new heights. They attempted the first partisan filibuster in American history of a Supreme Court nominee, forcing the Senate majority to invoke the nuclear option to restore more than 200 years of Senate practice. The minority attempted to block the president’s Cabinet nominees, and would be wreaking havoc with filibusters had they not already abolished the filibuster for all executive nominees back in 2013. Now they take routine executive functions, such as a president replacing an FBI director, and cast it in a sinister light, demanding a special counsel.

The president has exercised his constitutional prerogative to replace the FBI director, and the attorney general’s duties include advising the president on how to do so. The FBI will continue to fulfill its proper role, under the supervision of DOJ. There is no place or role for a special counsel in that equation.



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