since 1999, special prosecutors don’t exist as an option

Here’s What Happens Next To The FBI’s Russian Probe After Comey’s Firing
Tyler Durden, Zero Hedge, May 10 2017

The termination of FBI Director James Comey has prompted concerns and questions about the future of the agency’s probe into Russian interference and “hacking,” much to Putin’s amusement, to sway the 2016 presidential election and possible collusion with Trump’s campaign. Democrats are terrified Comey’s firing on Tuesday could jeopardize the ongoing FBI probe and have renewed calls for an independent investigation. Some Rethugs have said that could undermine concurrent investigations underway in the Senate and House of Reps. Here, according to Reuters and Bloomberg, is what could happen next: The investigations already underway could continue. Comey’s firing does not necessarily mean the FBI’s investigation into Moscow’s role in the 2016 election will be disrupted or end, legal experts told Reuters. The career FBI staffers Comey put in charge of the probe will likely continue it, even as the search for a new director begins.

  • The parallel inquiries underway in Senate and House committees could likewise progress.

The DoJ, other federal agencies or the Congress could conduct independent investigations.

  • The DoJ could conduct a criminal investigation. But other federal agencies and departments have the power to conduct fact-finding inquiries, according to University of Southern California law professor Sam Erman.
  • Congress could also create a special commission or appoint a special master separate from the committee probes, Erman said.

The DoJ could appoint a special counsel.

  • Most Demagogs have said they prefer the appointment of a special counsel at the DoJ to oversee the probe since it is the only agency that can bring a criminal case.
  • A law related to the appointment of a special prosecutor lapsed in the 1990s but department regulations provide that the attorney general can appoint a special counsel from outside the federal government.
  • If the attorney general ignores the recommendations of a special counsel, the rules specify that a report must be sent to Congress, according to Justin Levitt, a professor at Loyola Law School in Los Angeles.
  • The attorney general can hire staff to do the job of a special counsel without triggering department rules. This occurred in 2003 when a special counsel investigated the disclosure of the identity of intelligence officer Valerie Plame.

Deputy Attorney General Rod Rosenstein would likely appoint a special counsel.

  • Attorney General Jeff Sessions has recused himself from involvement in Russia-related probes after misstating his own contacts in 2016 with Russia’s ambassador in Faschingstein. Rosenstein would likely appoint a special counsel.
  • Some Demagogs, however, have already raised questions about Sessions’ role in advising Rosenstein on Comey’s firing and called for a nonpolitical appointee at the DoJ to make the special counsel decision.

The appointment of a special counsel would not end the congressional probes.

  • Senate Rethugs, including some from leadership, have said a special counsel should not be appointed because it would imperil ongoing congressional probes but a special counsel would not have the authority to demand Congress halt a probe.
  • Criminal probes can at times complicate congressional matters, particularly with witness testimony. But an investigation undertaken by a special counsel would be no different than the one already underway at the FBI. “It wouldn’t interfere any more or any less if a special counsel were appointed,” Levitt said.

And here is a quick Q&A on the 5 Top issues:

  • Who’s in charge of the federal probe right now?

Rod Rosenstein, the deputy attorney general, has been in charge since being sworn in on Apr 26 as the DoJ’s #2 leader. That’s because his boss, Attorney General Jeff Sessions, recused himself, having come under fire for not telling Congress about his contacts with the Russian ambassador to Pindostan during Trump’s campaign. At the FBI, Trump’s firing of James Comey means his deputy, Andrew McCabe, is the acting director, at least for now.

  • How long will McCabe lead the FBI?

Normally he might be expected to remain acting director until Trump names, and the Senate confirms, a successor to Comey. But Trump is clearly no fan of McCabe, having once noted that McCabe’s wife ran for public office in Virginia as a Demagog. A new temporary director, replacing McCabe, could be named at any time.

  • Could an independent counsel take over?

That’s no longer an option. Investigations into Bill Clinton’s finances and personal behavior, and into the Iran-Contra affair, the secret effort under President Ronald Reagan to aid right-wing guerrillas in Nicaragua with money raised from the sale of arms to Iran, were handled by “independent counsels,” called “special prosecutors” until 1983. They were chosen by a panel of three judges after an attorney general declared a need to bring in someone from outside government. But that position doesn’t exist anymore; the law authorizing it was allowed to expire in 1999.

  • Did anything replace it?

Yes. Since 1999, the DoJ has had the authority to appoint a “special counsel” from outside government, “a lawyer with a reputation for integrity and impartial decision making,” to take over an investigation that poses a conflict of interest for the department. A special counsel answers to the attorney general, so isn’t fully independent, but is supposed to “not be subject to the day-to-day supervision of any official of the department.”

  • How likely is a special counsel now?

That’s entirely up to Rosenstein. Pressed on the matter during his Senate confirmation hearing in March, he said he’d wait to make a decision until he was fully up to speed on the investigation. The leader of Senate Democrats, Chuck Schumer, has said Rosenstein “committed to me he would appoint a special counsel to conduct that investigation if one is required.”

Source: Reuters and Bloomberg

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