Everything You Need to Know About Federal Special Prosecutors

by Ian Millhiser –

This might be important soon.

What happens if the nation’s top law enforcement officer is the target of a criminal investigation?

Wednesday night, the Washington Post reported that Attorney General Jeff Sessions met with Russia’s ambassador twice, and then falsely told the Senate Judiciary Committee that “I did not have communications with the Russians.” If Sessions knew that he was making a false statement at the time, then he appears to have violated the federal perjury law, and potentially may have violated a ban on false statements to Congress.

Ordinarily, when a public official is accused of a federal crime, the process is relatively straightforward. The Justice Department investigates and, if it determines that sufficient grounds exist to bring charges, prosecutes. Sessions, however, sits at the apex of DOJ. He can hardly be trusted to investigate himself, and every one of his subordinates has an obvious conflict of interest.

Fortunately, DOJ does have a procedure for circumstances where an investigation “by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department.” Sessions — or, should Sessions realize that his own involvement in this scandal requires him to recuse himself, Sessions’ deputy — may appoint a special prosecutor to investigate the attorney general’s conduct and, if necessary, bring charges.

From 1978 until 1999, a more formal process existed for independent prosecutors. The Ethics in Government Act created an Office of Independent Counsel. Under this law, independent prosecutors would be appointed by a three-judge panel — although generally only after the attorney general or acting attorney general asked the panel to do so.

Both the majority party and the minority party on the Senate Judiciary Committee could petition the attorney general to seek an independent counsel, and these petitions imposed significant disclosure obligations upon the head of the Justice Department.

The provision creating the Office of Independent Counsel lapsed in 1999, however, and President Bill Clinton — who had his own very negative experience with an independent prosecutor — had little interest in extending its life. For this reason, the process governing special prosecutors is now less formalized and governed largely by the Justice Department’s own regulations.

Those regulations provide that “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 the Justice Department faces a conflict of interest. The special counsel “shall be a lawyer with a reputation for integrity and impartial decision making, and with appropriate experience to ensure . . . that the investigation will be conducted ably, expeditiously and thoroughly.”

Though the scope of the special counsel’s investigation will be determined by the attorney general (or the acting attorney general), “the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” The special counsel, moreover, “shall not be subject to the day-to-day supervision of any official of the Department,” although the attorney general or acting attorney general does have significant authority to overrule the counsel’s decisions.

Thus, it matters a great deal whether Sessions recuses himself, as a special counsel is not truly independent of the Justice Department. If Sessions does recuse himself, the question of who steps in as acting attorney general will also matter a great deal.

Currently, Dana Boente, the U.S. Attorney for the Eastern District of Virginia, is the acting deputy attorney general. Boente briefly served as acting attorney general after his predecessor, Sally Yates, was fired for refusing to defend Donald Trump’s Muslim ban.

Notably, Boente ordinarily would not have been next in line to replace Yates, according to a former top spokesperson for the Justice Department.

Also, the next U.S. atty in line of succession was not Boente, but Zach Fardon. Did Trump go forum shopping for one who would follow orders?

It is unclear, however, whether Boente will remain the Justice Department’s #2 lawyer for much longer. Trump nominated Rod J. Rosenstein, the current U.S. Attorney in Baltimore, to be the next deputy attorney general. So, if Sessions recuses, the question whether to appoint a special prosecutor could fall to Rosenstein and not Boente.

In any event, the question of whether a special prosecutor will look into Sessions’ conduct will fall to a man who owes his high position in government to Sessions’ most powerful ally, Donald J. Trump.

Reprinted with permission from Think Progress, a branch of The Center for American Progress