Obama Can Appoint a Special Prosecutor on Russian Contacts (and even on conflicts of interest and “Emoluments” violations)

Questions are swirling about potentially illegal contacts between the Trump campaign and Russian officials. There is credible evidence that former campaign manager Paul Manafort was on the payroll of the pro-Putin Ukrainian government and did not register as a foreign agent in the U.S. The leaked 35-page report mentions specific allegations about Manafort and Trump advisor Carter Page coordinating with Russian officials, and suggests some Russian “engaging” with Trump nominee Michael Flynn, as well as Jill Stein. The 35-page report contains some erroneous details and some allegations that seem dubious (especially about Trump lawyer Michael Cohen). Trump has alleged that the leak was politically motivated and perhaps illegal. There is a plausible question of whether some intelligence officials are illegally smearing or leaking about Trump.

In yesterday’s press conference, Trump was asked, “Can you stand here today once and for all and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?” He evaded this question and then abruptly ended the press conference. Trump also did not present a plan that remotely addresses his unprecedented degree of financial conflicts of interest, which overlap with the problem of Russian influence and kompromat. Some have claimed that President Trump will be in violation of the Constitution’s Emoluments clause (see below).

So what are the next steps?

1. We can hope that the Republican Congress will investigate. I am optimistic that Senators John McCain, Lindsey Graham, and Marco Rubio will take steps in that direction. It is unclear how far they would be willing to go.
2. We can hope that FBI Director Jim Comey might investigate fully, but he serves under the Attorney General, and we should have no faith in Sessions as an independent, unconflicted law enforcement official.
3. There is one more move to consider carefully: Obama’s Attorney General Loretta Lynch can appoint a special prosecutor with jurisdiction over the illegal contacts or conspiracy with Russian officials. A special prosecutor’s term does not end with an administration. It is open-ended, so the special prosecutor would continue to serve during the Trump administration… unless the new Attorney General fired him or her, only for “good cause.”

I am not necessarily endorsing this unprecedented path. There is a good argument to be made that it is too soon to move so swiftly, that the intelligence materials are too questionable and too unsubstantiated. Lynch, a Democrat, appointing a special prosecutor could backfire as an overreach, perceived as partisan. Even if Lynch appoints a Republican-affiliated lawyer, maybe anything an “Obama” prosecutor finds will not be viewed as legitimate or reliable. Perhaps we should let the intelligence community and journalists do more of their jobs first, and then we should rely on options 1 (Congress) and 2 (Comey). But I am nevertheless going to explain how this process would work as a legal matter, because there are only eight days left to consider it.

First, keep in mind that we no longer have the statute that created the Office of the Independent Counsel, which had given us Kenneth Starr. Congress passed the Ethics in Government Act in 1978 after Watergate, and the act included the process for appointing an independent counsel or independent prosecutor. Under the statute, Congress or the Attorney General could refer a legal investigation to a special panel of the D.C. Court of Appeals, which could then appoint its own choice of lawyer with no fixed term and with an unlimited budget. The Attorney General could fire this independent prosecutor only for “good cause.” The statute was reauthorized twice (1987 and 1994), but after the Clinton impeachment, Congress let the statute lapse in 1999.

The replacement is the “special prosecutor,” most prominently seen with Patrick Fitzgerald’s investigation of the leaks during George W. Bush’s administration about CIA operative Valerie Plame, leading to scrutiny of Karl Rove and the conviction of Scooter Libby. The office of special prosecutor is governed by federal regulations, based on statutes found in 28 U.S.C. Sections 509-519. I’ll go step by step through the relevant regulations:

600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Let’s start with Paul Manafort, the clearest case so far. He was Trump’s campaign manager. There is an obvious conflict of interest, particularly because the allegations spill over into the rest of the Trump campaign and the administration. Manafort’s actions overlap with the allegations about Carter Page and Trump himself.

600.3 Qualifications of the Special Counsel. An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

I’m not sure if these same regulations applied to Patrick Fitzgerald in 2003, because he was a U.S. Attorney at the same time of his appointment. Perhaps he had to leave that office to accept the special prosecutor role formally. In any event, if Attorney General Lynch were to appoint a special prosecutor, he or she would have to come from outside the federal government to adhere to the strict letter of the regulation.

Now things get ever more interesting. I mentioned that President Trump would be in violation of the Constitution’s Emoluments clause on Day 1 because his hotel empire would be a vehicle for foreign payments over market value. Article I, Section 9 states: “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” The word emolument is used elsewhere in the Constitution, and it clearly means “payment,” not a redundant synonym for present or gift. The problem is that it is still not clear how to enforce this clause, other than by impeachment Some argue that a competitor hotel could bring a civil claim for a constitutional violation, like a constitutional tort based on the unfair or corrupt business practice. It turns out that a special prosecutor can also have civil jurisdiction over this civil matter, and could seek an injunction to make sure the federal constitution is followed:

600.4 Jurisdiction.

(a) Original jurisdiction. The jurisdiction of a Special Counsel shall be established by the Attorney General. The Special Counsel will be provided with a specific factual statement of the matter to be investigated. The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; and to conduct appeals arising out of the matter being investigated and/or prosecuted.

(b) Additional jurisdiction. If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.

(c) Civil and administrative jurisdiction. If in the course of his or her investigation the Special Counsel determines that administrative remedies, civil sanctions or other governmental action outside the criminal justice system might be appropriate, he or she shall consult with the Attorney General with respect to the appropriate component to take any necessary action. A Special Counsel shall not have civil or administrative authority unless specifically granted such jurisdiction by the Attorney General.

Attorney General Lynch would have to explicitly grant jurisdiction over the Emoluments Clause. After Trump’s disregard of the conflicts of interest over his business dealings and foreign influence, Lynch would be within reason to grant such jurisdiction from the beginning. It is also conceivable that violations of the emoluments clause could constitute criminal bribes — if involving quid pro quo arrangements — and could raise questions about illegal conduct by American or foreign officials.

Two other regulations are relevant: § 600.5 gives the special counsel the power to request staff, and § 600.6 equates the special prosecutor’s “powers and authority” to that of a U.S. Attorney.

The special counsel does not have a fixed term. Instead, the special counsel serves with a certain degree of job security. He or she does not serve at the pleasure of the President or the Attorney General. The Attorney General can fire the special prosecutor only for “good cause”:

600.10(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General. The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies. The Attorney General shall inform the Special Counsel in writing of the specific reason for his or her removal.

         There is a separate question as to whether the terms of DOJ officials generally end when the President’s term ends. The answer is no. 28 U.S.C. Section 515 and the regulations at 600.1 through 600.10 are silent on the special prosecutor’s length of term, making it an indefinite term. Given that the special counsel is equated with a U.S. Attorney as the regulations indicate in CFR 600.6, perhaps the term is implicitly four years. But a U.S. Attorney’s office extends four years, regardless of changes in administration. There is a tradition for U.S. Attorneys to submit letters of resignation at the end of an administration, but there is no legal rule for them to do so. The fact that U.S. Attorneys retain their jobs as a formal matter across administrations was the origin of the controversy for George W. Bush firing U.S. Attorneys in 2005. This document from the Bush White House in 2001 confirms that U.S. Attorneys continue to hold office after the change of administrations.

Thus, if Attorney General Lynch appointed a special prosecutor with a directive to investigate the Russian hacks, the Trump campaign’s contacts with Russian officials and possible implication in hacking, extortion, and quid pro quo deals, and/or the Emoluments clause, the only way to get rid of this special prosecutor would be if the new Attorney General can establish a case of “good cause,” a limited list of unprofessional behavior, not merely a difference of opinion or priority. But if Lynch appoints an independent, trustworthy lawyer, perhaps Trump would understand the benefit of having an independent investigation into his administration and also of the intelligence agencies (which he believes are maligning him) for signs of their illegal leaking or even manufacturing claims.

Should President Obama and Attorney General Lynch go down this unprecedented road? I am honestly not sure. But I suggest that it is worth discussing for the last eight days it would be possible. Whether or not it is wise, such a move seems to be legally permissible and would be a way to navigate the uncharted legal territory we are confronting in these very unusual times.