Special Prosecutor More Likely After Mass Removal of US Attorneys

WASHINGTON - March 13, 2017 - PRLog -- Special Prosecutor More Likely After Mass Removal of US Attorneys
Those Concerned Should Make Formal Request Followed By Law Suit - Expert

WASHINGTON, D.C.  (March 13, 2017) - The abrupt removal of 46 U.S. attorneys, some very likely in the midst of investigations which could seriously harm President Donald Trump, greatly strengthens the argument of a special prosecutor, and those calling for one should now make a formal request, followed if necessary by a law suit, argues a lawyer whose law suit resulted in a court order requiring a special counsel.

        While many new administrations replace U.S. attorneys, the process is usually gradual so as not to needlessly disrupt important ongoing investigations, and to permit replacements to be selected.

        Indeed, the firing of the U.S. attorney responsible for investigations of any taps on Trump Tower, or any contacts with Russians by Trump confidants from Trump Tower, would logically be investigated by the U.S. attorney for Southern New York, who was fired well before a replacement was named.

        Here the abruptness of all of the terminations before replacements are ready, greatly strengthens the argument for the need for a completely independent investigation, says law professor John Banzhaf.

        Indeed, Sen. Dianne Feinstein said the process of replacing U.S. attorneys is almost always very  gradual, with the holdovers leaving over time to "protect the independence of our prosecutors and avoid disrupting ongoing federal cases."

        Thus, she concluded, with Attorney Genera Jeff Sessions having recused himself from anything to do with investigations of Russian involvement, "the independence of federal prosecutors could not be more important. That's why many of us have called for the appointment of a special prosecutor."

        But, says Banzhaf, if those calling for the appointment of an independent special counsel to oversee an investigation of alleged Russian contacts really want one, it's time for them to make a formal request, perhaps backed up by a lawsuit if necessary.


        "Since existing law seems to mandate such an appointment, the logical first step for those who really want such a special counsel would be to make a formal legal request.  Should that not produce the desired result, those concerned should sue, as I and several others were able to do," suggests Banzhaf.

        Filing a formal legal request puts great pressure on an official to act, and a denial - or even a refusal to act  - can often be litigated, whereas general statements on talk shows create little real pressure, and an denial or refusal to act cannot give rise to any kind of law suit.

        Moreover, they should act very quickly so that the initial appointment decision - or, if necessary, a determination whether to acquiesce to the resulting law suit if the request is denied - would be made by Acting Deputy Attorney General Dana Boente, an Obama appointee, rather than by the new nominee, Rod Rosenstein.

        Rosenstein's refused to commit to appointing an impartial special counsel, saying that all investigation are impartial.  A vote confirming him could occur very quickly, unless Democrats led by Sen. Richard Blumenthal are able to delay it until Boente can act on a formal request for an appointment, or settle any law suit.
        In three separate cases, including Banzhaf's, courts have held that the plaintiffs had legal standing to raise the issue, that the decisions of the Attorney General not to seek the appointment of an independent counsel were reviewable, and that it was constitutional for a judge to issue an order requiring the appointment and/or at least a preliminary investigation.

        In Banzhaf's case it was later ruled that the appointment need not be made, but only on the narrow non-constitutional ground that the legislative history of the Ethics in Government Act [EGA] showed that Congress did not want those decisions under this act to be subject to court review.

        Although there are many cases where courts have determined that decisions of the Attorney General and the Department of Justice are reviewable, just like decisions of other agencies, the courts determined on the basis of  the legislative history of the EGA that Congress did not intend this decision under this specific statute to be reviewable.  This narrow ruling, however, leaves in effect decisions that legal standing exists, that decisions refusing to make such appointments may be reviewable by the courts, and that orders requiring appointments would not be unconstitutional.

        Since any law suit seeking the appointment of a special counsel would be brought under a Justice Department regulation rather than a congressional statute, this legislative history of the EGA presumably would not be directly relevant, so anyone opposing review of a negative decision by Boente would have to defeat what courts call a very strong presumption in favor of reviewability.

        While there is no longer a statutory scheme for the appointment of an independent counsel, a Justice Department regulation [28 CFR 600.1] appears to require the appointment.

        Moreover, there is a very clear precedent for just such an appointment.  More than a decade ago, there were allegations that the Bush White House leaked the identity of a CIA operative, Valerie Plame, the wife of a prominent critic of the Iraq war.  To avoid even the appearance of a possible conflict of interest, then-Attorney General John Ashcroft recused himself from any involvement, instead leaving decisions up to his then deputy attorney general (now FBI director), James Comey.

        Comey, following the clear mandatory language  of the regulation, appointed Chicago-based U.S. Attorney Patrick Fitzgerald as special counsel to investigate the Plame matter.  According to some, this sets the new standard which should be followed in the current situation.


http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf