DoJ Refuses to Prosecute AG, But an SC Could

GOP Should Ask Court to Appoint a Non-Statutory Special Counsel
WASHINGTON - June 16, 2024 - PRLog -- WASHINGTON D.C. (June 17, 2024) - The Department of Justice [DoJ] has refused to prosecute its head, Attorney General [AG] Merrick Garland, although he has been held in contempt by the House for refusing to turn over audio tapes of Special Counsel Robert Hur's interview with President Joe Biden.

But Republicans [GOP] have several options for obtaining the tape - which might suggest declines in Biden's cognitive functioning which would not be clear from a transcript of the same interview which has already been released - says public interest law professor John Banzhaf.

However, another possible option to obtain enforcement might be for Republicans to go before a judge - by either filing a new lawsuit, or by seeking to intervene in existing cases seeking the audio recording - and move the appointment by the judge of a non-statutory special counsel whose job it would be to prosecute the House's contempt resolution, says Professor Banzhaf.

The impartial activist law professor crafted novel legal tactics to help obtain special prosecutors for then-president Richard Nixon, a court order to require the appointment of an independent counsel to investigate Debategate, an order requiring former vice president Spiro Agnew to return (with interest) the money he illegally received as bribes, and more recently he helped torpedo Hunter Biden's "sweetheart" plea deal, and filed the detailed criminal complaint which led to the indictment of Donald Trump in Georgia - argues that asking a judge to use his inherent power to appoint a special prosecutor is at the very least worth exploring.

But, as Banzhaf argued in his motion seeking the appointment of a special prosecutor to investigate and if necessary prosecute Nixon, courts appear to have an inherent power - independent of any statutory authority - to appoint persons from outside the government to serve as prosecutors where there is a conflict of interest, and the public interest would be served.

In summary, those seeking the audio recording, and/or those simply wishing to uphold and vindicate Congress' power to demand documents from the Executive Branch, probably will have to be creative and do something other than simply beseeching Garland to prosecute himself if they are to be successful.

This might include asking a judge to use his inherent (non-statutory) power to appoint a special prosecutor to avoid a clear and blatant conflict of interest, and/or seeking to intervene in one or more of the already-pending law suits trying to obtain the recordings under FOIA and seeking an expedited decision and order because of the House's vote, suggests Banzhaf.  @profbanzhaf

GW Law
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