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

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.

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