Demand For A Trump Special Counsel Filed; Legal Clock Starts Ticking

His Run For President Creates An "Irreconcilable Conflict of Interest" With AG Garland
WASHINGTON - Nov. 15, 2022 - PRLog -- A formal demand for the appointment of a special counsel to oversee all the current investigations and possible prosecutions of former president Donald Trump has been filed with the Justice Department because Trump's announced decision to run for president in 2024 creates just the irreconcilable conflict of interest designed to trigger such an appointment, says public interest law professor John Banzhaf.

Since this appears to be the first formal "written application" or "other request" for such an appointment which has actually been filed, it starts the legal clock ticking. If the appointment is not made, Section 555 of the Administrative Procedure Act [5 U.S. Code § 555] requires the Department of Justice to "provide prompt notice," as well as a "brief statement of the grounds for denial,"  [emphasis added]

A federal regulation, which creates a binding legal obligation upon the Attorney General, mandates the appointment of a special counsel if a criminal proceeding would "present a conflict of interest for the Department" or if "it would be in the public interest."

The regulation, 28 CFR § 600.1, requires such an appointment where there is a conflict of interest, and uses the word "will" - rather than "shall," "should," or "may" -  in order to make the mandatory nature of the legal obligation abundantly clear; one where the Attorney General legally has no discretion, explains the law professor.

The irreconcilable conflict of interest occurs because President Joe Biden, through his Attorney General Merrick Garland, can and does control the investigation and possible criminal prosecution of his chief rival for the 2024-28 presidency.

Also, Biden could use his prosecutorial authority through Garland to force Trump to accept a plea deal in which he agrees to drop out of the presidential race in return for not being prosecuted, or for a slap-on-the-wrist penalty; as former vice president Spiro Agnew was forced to do when he was investigated and prosecuted in a similar conflict of interest situation by a major political rival.

Moreover, Garland himself, in addition to Biden, is in a conflict of interest position himself, since he would almost certainly be fired if Trump becomes president; something Garland could help prevent from happening by continuing to vigorously investigate, and ultimately prosecute, the former president.

The demand document also notes that "a continuing refusal to follow the clear and unambiguous mandate of 28 CFR § 600.1 to appoint a special counsel would provide a very strong argument to quash any indictment and/or reverse any conviction of Trump which might be obtained with a prosecution conducted by the Department of Justice.   @profbanzhaf

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