What is a special prosecutor and why do so many people want one to investigate Trump?

After President Trump fired FBI Director James Comey, Democrats are calling for the appointment of a special prosecutor 

Alexandra Wilts
Washington DC
Thursday 11 May 2017 14:01
Comments

Following President Donald Trump’s abrupt firing of FBI Director James Comey, many in Congress say there is now a need more than ever for a special prosecutor to investigate the alleged ties between the Kremlin and associates of Mr Trump.

According to official documents released by the White House, Mr Trump dismissed Mr Comey over his handling of an investigation into Hillary Clinton’s use of a private email server while she was Secretary of State.

But Senate Minority Leader Chuck Schumer said on the Senate floor that if the administration truly had objections to the way Mr Comey handled the Clinton investigation, they would have had them the minute the president got into office in January.

“But he didn’t fire Director Comey then,” Mr Schumer said. “The question is: Why did it happen last night?”

Mr Schumer added that if the American people are to have faith in the impartiality of the Russia probe, a special prosecutor must be appointed to get the investigation “out of the hands of the FBI and far away from the heavy hand of this administration.”

Even before Mr Trump fired Mr Comey, Democrats have repeatedly been calling for the appointment of a special prosecutor, often called an independent or special counsel. White House spokesman Sean Spicer told reporters “there is clearly at this point no evidence of a reason” to appoint one, as “you have a system that's working”.

What is a special prosecutor, and who appoints one?

A special prosecutor is an individual appointed by the Justice Department to investigate a certain legal case. They are usually only used when the regular justice system seems to have been compromised by the case at issue.

In the wake of the Watergate scandal, Congress passed a statute that enabled the attorney general or Congress to request an independent counsel. But to protect the position from political meddling, a panel of three federal judges was in charge of appointing the independent counsel and oversaw the investigation.

Congress let the law expire in 1999, after it had been reauthorised multiple times and used in more than a dozen instances to initiate investigations, according to PBS Frontline. In the 1990s, the law was famously used to appoint lawyer Kenneth Starr to oversee inquiries into the Clinton administration.

In present day, according to the American Constitution Society for Law and Policy, Congress cannot appoint a special prosecutor on its own, as the power to investigate and prosecute crimes rests entirely in the executive branch of government.

Based on the US Code of Federal Regulations, the Attorney General – or in cases in which the Attorney General is recused – the Acting Attorney General, will appoint a special counsel if doing so is warranted; it would be in the public interest; and the case presents a conflict of interest for the Justice Department.

Since Attorney General Jeff Sessions recused himself from the Russia investigation, Deputy Attorney General Rod Rosenstein would appoint the special prosecutor.

Senator Schumer said on the Senate floor that Mr Rosenstein has the authority to appoint a special prosecutor right now.

“He needs no congressional authorisation,” Mr Schumer said. “This would simply be a step that he could take as outlined in the Department of Justice guidelines and in a law passed after Watergate to get an independently-minded prosecutor who would be insulated from various pressures.”

He added that a special prosecutor is not subject to day-to-day supervision by the Attorney General or anyone else at the Justice Department.

“That means the special prosecutor would have much greater latitude in who he can subpoena, which questions they ask, how to conduct an investigation,” Mr Schumer continued. “The special prosecutor can only be removed for good cause, such as misconduct – not to quash the investigation. Third, there is built-in congressional oversight. Congress is notified whenever a special counsel is appointed, removed or finished with the investigation.”

What kinds of people are appointed to a special counsel?

Regulations specify that a special counsel must be a lawyer from outside the US government.

Register for free to continue reading

Registration is a free and easy way to support our truly independent journalism

By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists

Please enter a valid email
Please enter a valid email
Must be at least 6 characters, include an upper and lower case character and a number
Must be at least 6 characters, include an upper and lower case character and a number
Must be at least 6 characters, include an upper and lower case character and a number
Please enter your first name
Special characters aren’t allowed
Please enter a name between 1 and 40 characters
Please enter your last name
Special characters aren’t allowed
Please enter a name between 1 and 40 characters
You must be over 18 years old to register
You must be over 18 years old to register
Opt-out-policy
You can opt-out at any time by signing in to your account to manage your preferences. Each email has a link to unsubscribe.

By clicking ‘Create my account’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Already have an account? sign in

By clicking ‘Register’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Register for free to continue reading

Registration is a free and easy way to support our truly independent journalism

By registering, you will also enjoy limited access to Premium articles, exclusive newsletters, commenting, and virtual events with our leading journalists

Already have an account? sign in

By clicking ‘Register’ you confirm that your data has been entered correctly and you have read and agree to our Terms of use, Cookie policy and Privacy notice.

This site is protected by reCAPTCHA and the Google Privacy policy and Terms of service apply.

Join our new commenting forum

Join thought-provoking conversations, follow other Independent readers and see their replies

Comments

Thank you for registering

Please refresh the page or navigate to another page on the site to be automatically logged inPlease refresh your browser to be logged in