Can Sessions Appoint 2nd Special Counsel to Probe Democrats?

For months, President Donald Trump and his Republican allies have been pressing the Justice Department to investigate Democratic scandals.


They want Attorney General Jeff Sessions to appoint a second special counsel to investigate a list of 14 allegations against former Secretary of State and presidential candidate Hillary Clinton and other former Democratic officials.


Having multiple special counsels is not unprecedented. Both former presidents Bill Clinton and Ronald Reagan faced several special prosecutor investigations during their two terms in office.


What would be out of the ordinary is for the Justice Department to appoint a special counsel to investigate a sitting president’s former campaign rival.


“That’s what Banana Republics, if I may, and totalitarian regimes do,” said John Q. Barrett, a professor of law at St. John’s University in New York.  


A special counsel is a prosecutor appointed to investigate a violation of federal law when a conflict of interest prevents the Justice Department from undertaking a probe.  


Until 1999, the special prosecutor, also known as an independent counsel, operated outside the department of justice. 

Since then, the Office of the Special Counsel has been based inside the Justice Department and reports to the attorney general.  


The authority to appoint a special counsel rests with the attorney general.  If the attorney general has a conflict of interest, the deputy attorney general will make the appointment.


In March, Sessions, a former adviser to Trump’s presidential campaign, recused himself from the department’s investigation of Russian interference in the 2016 presidential election. The move led to the appointment of Special Counsel Robert Mueller in May.

Trump has dismissed the inquiry as a “witch hunt,” and instead pressed the Justice Department to investigate Clinton, fueling speculation Sessions will bow to political pressure and appoint a special counsel.


Credible evidence needed

In a letter to Republican members of the House Judiciary Committee, Assistant Attorney General for Legislative Affairs, Stephen Boyd, wrote Monday that Sessions has “directed senior federal prosecutors to evaluate certain issues…”


The prosecutors, Boyd wrote, will make recommendations on whether any matters should be investigated or “merit” the appointment of a special counsel.


But in testimony before the House Judiciary Committee this week, Sessions sought to assuage concerns that the appointment will be politically motivated.


“The Department of Justice can never be used to retaliate politically against opponents, and that would be wrong,” he said.


When Republican Jim Jordan suggested “it looks” like there was enough evidence to merit the appointment of a special counsel, Sessions said, “I’d say ‘looks like’ is not enough basis to appoint a special counsel.”

To name a second special counsel, Session testified, he’d need a “factual basis.”


Barrett said Sessions’ testimony poured “a lot of cold water” on the prospects of appointing a special counsel.


To order an investigation, the Justice Departments needs credible evidence of wrongdoing, not a “political letter” containing allegations, Barrett said.


“It’s easy to write up a political letter or to make an allegation but the ordinary work of law enforcement is what the Department of Justice will do in any case, including a special counsel case,” Barrett said.


Eric Jaso, a former associate independent counsel for the Whitewater investigation during the Bill Clinton presidency, noted that the House Republicans put their allegations in a letter instead of making a formal criminal referral to the Justice Department.


The Justice Department has not said whether it is investigating any of the allegations, but Barrett said the allegations do not indicate “federal criminal activity or potential criminal activity” that would warrant the appointment of a special counsel.


But just because Clinton was a secretary of state and later a presidential candidate, she should not be immune from prosecution, he said.


“The bottom line for any prosecutors is, is there enough evidence to suggest that a crime has been committed and if so, it should be investigated,” Jaso said.

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