Posted on 06/13/2017 11:36:50 AM PDT by Meet the New Boss
A Special Counsel can investigate members of Congress, after all.
But if Congress wanted to provide a "conflict of interest" exception to the requirement for Senate approval of all US Attorneys, they would need to put that exception in the statute.
One source lists the more general DOJ authorizations. Seems like the DOJ can do it this way unless Congress says otherwise.
5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519515-519.
https://www.law.cornell.edu/cfr/text/28/part-600
But these are not US attorneys. If Congress wants to take a crack at changing the current appointment process of special counsels, and making it identical to US attorneys, they have had 18 years to do so.
Those are general statutory provisions by Congress providing the general power of agencies to adopt regulations, the power of the attorney to delegate generally, and so forth.
Nothing in those general provisions contradicts or overrides the specific statutory requirement that every US Attorney be confirmed by the Senate.
If the DOJ grants this person all the power of a US Attorney, then in substance this person IS a US Attorney, whether or not they use that title.
They can't evade a law simply by calling someone a different title.
A US Attorney “for each judicial district”, which is a law. Doesn’t say anything about other prosecutors, and we know the DOJ has them. Might be an interesting case for the SC, if there is not already case law on it.
That’s the best argument I came up with on my initial reading but it’s pretty weak.
I note also that this law says any US Attorney can be fired by the President.
People are claiming that under the DOJ regulation only Rosenstein can fire the Special Counsel, but if the Special Counsel is really a de facto US Attorney, then President Trump can fire him.
A Special Counsel's duties are different & wider in scope than those of a US Attorney. Granting them the same powers as a US Attorney is more of a floor than a ceiling.
Again, if Congress wants to take a crack at changing this, they are free to do so. For 18 years they have refused.
The precedent is Scooter Libby’s conviction by Special Counsel Patrick Fitzgerald.
It’s possible Libby’s appeal did address the issue; I’ve not read the details.
Fitzgerald and his staff later complained that a Special Counsel is too limited if the goal is to reveal information rather than get a random conviction on something specific!
BTW, Libby is again practicing law in DC, AFAIK. Says a lot about how serious DC thinks his conviction was.
To change what? Congress has not passed a law currently in force on special counsels.
If DOJ is doing something contrary to law then that should be challenged in the courts and the regulation struck down.
Yes there was the Fitzgerald precedent. Surely this issue was raised and resolved there? But if so I’m not aware of it.
Exactly. And they have had 18 years to at least consider such a law, if they wanted.
Whether it is wise or not, multiple sessions of Congress have signaled, through their inaction, they are OK with the arrangement.
One cannot infer from the absence of action one way or another by Congress on a particular subject that Congress therefore approves of the way a regulatory agency is handling that subject.
I should add that the reason I think that's weak is because in substance the Special Counsel has been appointed a de facto US Attorney with respect to each judicial district with respect to which he is entitled to commence prosecutions.
And as far I can tell, the Special Counsel is not limited as to which judicial district in which he can prosecute.
So in substance he is an additional US Attorney with respect to every judicial district in the country but who has never been approved by the Senate.
I guess that’s what makes him “special”.
I think the old law was about “independent counsel” which was different somehow. Or so I have heard.
I gotta say the more I look at this, the more I think the Special Counsel appointment of Mueller is invalid because it was not approved by the Senate.
DOJ screwed up when they adopted a regulation saying a Special Counsel has the same power as a US Attorney.
If he is a US Attorney, then by law he has to be approved by the Senate, and they can’t get around that by calling him by a different title.
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