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Trump Announcement Starts Legal Clock Ticking With Filing
AG Garland Must Now Provide "Prompt Notice" and "Grounds For Denial"
Under federal statute 5 U.S. Code § 555, AG Merrick Garland is now legally obligated to "provide prompt notice," as well as a "brief statement of the grounds" for any denial; something which to date he has been able to avoid - despite numerous calls for such an appointment by many who said that failing to do so would "present a conflict of interest for the Department" - because no formal request had been filed.
Federal regulation 28 CFR § 600.1, which sets forth the controlling law, provides that "The Attorney General . . will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and 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."
The use of the word "will" - rather than the more permissive "should" or "shall" or "may" - emphasizes that the AG's legal duty to make the appointment is mandatory and without any discretion if there is a conflict of interest, says public interest law professor John Banzhaf, an expert in such matters who played a role in the appointment of two special prosecutors, and in obtaining a court order to appoint an independent counsel.
Now that Trump's announcement tonight has created a clear conflict of interest - since, if successful, Trump almost certainly would fire Garland and other top Justice officials - the AG cannot decline to make the appointment just because he may believe that it would unreasonably delay the investigations or otherwise do more harm than good, that the public sufficiently trusts him to act impartially, etc,
Indeed, suggests the law professor, a refusal by Garland to appoint a special counsel, now that Trump has formally announced and a formal demand has been filed, could be grounds for the former president to challenge any further subpoenas or demands for his testimony.
Even more serious, a deliberate refusal to comply with 28 CFR § 600.1 could provide Trump with strong legal grounds to quash any federal indictment which might be obtained, illegally he would argue, and/or overturn any guilty verdict.