The necessity of appointing a Special Counsel

Former Federal prosecutor, judge, and law professor says legitimacy of justice institutions at risk

By William Wagner

Many people, including former prosecutors and members of Congress, have called for the appointment of a special prosecutor to investigate the actions of the former Secretary of State. While it appears that some of those calling for a special prosecutor also support Donald Trump for President, I do not. I do though, as a former federal prosecutor, judge, and legal ethics professor call for the appointment of a special prosecutor. I reached this conclusion after reviewing the publically available evidence, and reviewing what federal law says about appointing a special prosecutor.

Title 28 of the Code of Federal Regulations (CFR) articulates the appropriate circumstances for appointing a special prosecutor. This special federal prosecutor is called a "Special Counsel." Under section 600.1, the Attorney General ... "will appoint a Special Counsel" when the following circumstances exist:

1. "[H]e or she determines that criminal investigation of a person or matter is warranted" and
   
   
2. The investigation or prosecution by the Department of Justice "present[s] a conflict of interest for the Department....;" and
   
   
3. "That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."
   

Based upon the review of the publically available evidence, the following matters meet the first criteria, "that criminal investigation of a person or matter is warranted":

• The e-mail / national security matters investigated by the FBI where the Attorney General declined to prosecute,
  
  
• The pay for access and influence matters relating to the Clinton Foundation where three United States Attorney Offices and the FBI tried to investigate but were stopped by the Attorney General, and
  
  
• the perjury matters and
  
  
• the false representations before Congress matters.
  

The Attorney General's surreptitious meeting on a furtive airstrip with President Bill Clinton, just before she was about to make the call whether to initiate a prosecution on some of the above matters, is enough to meet the second criteria that the investigation or prosecution by the Department of Justice "present[s] a conflict of interest for the Department....;" This is especially so given that the former President is the husband of the key figure in the FBI investigation and Founder of the Clinton Foundation.

The highly charged political environment, where a presidential candidate is also a key figure of the alleged criminal activity, satisfies the third criteria where "under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter."

Many, have now brought to the attention of the Attorney General, matters that warrant consideration of appointment of a Special Counsel. Because they have done so, under 28 C.F.R. 600.2 she may appoint a Special Counsel to investigate. The Rule of Law demands that she do so, for no one, not even a former Secretary of State or a Presidential candidate is above the law.

Nothing less than the legitimacy of our nation's justice institutions is at risk. If, in the name of political expediency we allow the politically powerful to operate outside, and above, the Rule of Law, we merely create an illusion of a nation under law. Such a course inevitably erodes essential foundations of good governance. Although structural institutions of free government may stand for a time, the essence for which they stand eventually ceases to exist. For these reasons, I join in the call for the appointment of a Special Counsel.

© William Wagner