A Trump-Russia special prosecutor can be appointed by one person — the man who justified firing Comey
Following the abrupt firing of FBI Director James Comey Tuesday evening, Senate Minority Leader Chuck Schumer said appointing an independent prosecutor was the “only way” to have confidence in the investigation.
Sen. Mark Warner, the highest ranking Democrat on the Intelligence Committee, said the moment “demands the appointment of a special counsel.”
Democratic senators have begun stalling hearings and blocking Trump appointments in protest.
Anti-Trump “Resistance” groups are holding dozens of protests outside Senate offices Wednesday night demanding a special prosecutor. Earlier in the day, hundreds of people gathered outside the White House to protest Comey’s firing.
But Democrats may be shouting into the wind. No Republican lawmaker has backed their call for a special prosecutor, and even if they did, Congress no longer has the power to appoint one. The Ethics in Government Act of 1978, passed in the wake of Watergate, gave Congress that authority, but only until the act expired in 1999. Congress would have to pass another law, and then Trump would have to sign that law — or Congress would have to override his veto — in order to restore its authority.
Some Republicans, like Sen. John McCain of Arizona and Rep. Justin Amash of Michigan, have supported the creation of an independent committee that would have no prosecutorial powers. Such an entity would effectively be a better-staffed and more-focused version of the House and Senate intelligence committees already conducting their own investigations.
Ultimately, the decision to appoint a special prosecutor in the Trump-Russia investigation falls to one man: Deputy Attorney General Rod Rosenstein, the man who wrote the memo laying out the case for firing Comey.
Rosenstein alone can determine whether to appoint a special prosecutor, who to appoint, and how much power to give that person. The ACLU has been calling for the special prosecutor to have “full plenary power,” meaning authority equal to the attorney general, but Rosenstein can set limits.
“He could keep [the prosecutor] close and make it a ‘Mother may I?’ situation,” said Chris Anders, the deputy directory of the ACLU’s legislative office.
The attorney general would normally be calling these shots, but because Jeff Sessions recused himself from any investigation into potential Trump-Russia collusion due in part to his failure to reveal during his confirmation hearing conversations he had with Russia’s ambassador to the U.S., the task falls to Rosenstein.
A special prosecutor, which is technically now called a special counsel but has also been referred to as an independent counsel or an independent investigator, is appointed if there exists both sufficient evidence of wrongdoing and a sufficient conflict of interest that prevents the administration from carrying out the investigation. The special prosecutor assembles a team of investigators who work concurrently with the FBI, congressional committees, and any other relevant investigative agencies.
“Rosenstein is a career Justice Department person and enjoys a good and impartial reputation, but you never know,” said Paul Rothstein, a law professor at Georgetown University. “It’s a close call [whether appointing a special prosecutor is warranted], but remember, we don’t know everything that the existing investigation has uncovered.”
The Senate confirmed Rosenstein on April 25 in a bipartisan 94-6 vote. During his confirmation hearing, Rosenstein said he would “be willing to appoint a special counsel… whenever I determine it is appropriate based upon the policies and procedures of the Justice Department.”
When Schumer voted to confirm Rosenstein, he said the longtime U.S. attorney “had developed a reputation for integrity” and “would come to the same conclusion many of us have: that a special counsel is merited.”
But Schumer and other Democrats turned against Rosenstein following his memo suggesting that the FBI couldn’t regain public and congressional trust while Comey was in charge. “If I could have that vote back [on Rosenstein], I would be voting in a different way,” Warner said on MSNBC Tuesday night. “I’m just very disappointed in the deputy attorney general based upon his reputation that he would put his name to that kind of letter.”
Senate Democrats collectively demanded Wednesday afternoon that Rosenstein delegate his authority to appoint a special prosecutor to the highest-ranking person at the Justice Department who isn’t a political appointee.
But Rosenstein has no obligation to listen.