Department of Justice Regulations Compel a Special Counsel
Updated: Feb 21, 2020
Today, Deputy Attorney General Rod Rosenstein issued an Order Appointing Robert S. Mueller III as Special Counsel. Rosenstein reached the same conclusion I reached: Department of Justice regulations require him to designate a special counsel from outside the Department.
Rosenstein assigned Muller to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” and related matters.
The Washington Post reports that Rosenstein barely informed the White house before appointing Mueller.
Congress let lapse the independent prosecutor law to that they passed in the wake of Watergate. Nonetheless, Department of Justice regulations compel a special counsel to investigate President Donald Trump for firing Federal Bureau of Investigation Director James Comey. Comey, of course, was investigating the connections between the Trump Presidential Campaign and the Russian Federation.
Watergate had presented a similar situation, and in response, Congress passed the Ethics in Government Act of 1978 to create a prosecutor difficult to fire. That Act gave significant authority to an independent counsel could investigate crimes the President may have committed. If that Act were still in effect, it would have required Deputy Attorney General Rod Rosenstein to decide whether to request an independent counsel to investigate possible crimes. After Independent Counsel Kenneth Starr investigated President Bill Clinton, however, Congress declined to reauthorize the independent counsel chapter of the Act, and those provisions no longer operate.
That does not end the possibility of an independent investigation. Department of Justice regulations compel Rosenstein to appoint a “special counsel” from outside the United States government to investigate in “extraordinary circumstances.” Firing Comey violates the Rule of Law and qualifies as an extraordinary circumstance for which the regulations require a special counsel.
I. Congress passed the Ethics in Government Act to stop future Saturday Night Massacres.
Congress passed the Ethics in Government Act in the wake of Watergate—and the Saturday Night Massacre, in particular. On one Saturday night as the Watergate investigation was heating up, President Richard Nixon asked Attorney General Elliot Richardson to fire special prosecutor Archibald Cox. The Department of Justice (Justice) had appointed Cox to investigate the break-in at the Watergate Hotel. Cox had just obtained a court order directing the President to produce tapes of Oval Office conversations.
On Saturday, October 20, 1973, Richardson refused to fire Cox and resigned in protest. Deputy Attorney General William Ruckleshaus became acting Attorney General. Nixon asked Ruckleshaus to fire Cox. Ruckleshaus also resigned. Solicitor General Robert Bork became acting Attorney General. When Nixon asked him to fire Cox, Bork did so.
Nixon resigned nine months later on August 8, 1974.
II. Congress reauthorized the independent counsel provisions three times, but the sun set on them in 1999.
Congress passed the Ethics in Government Act in 1978, and it sunset five years later. As a quick point on nomenclature, that Act created the Justice position of “special prosecutor.” Congress later renamed that position the “independent counsel.” The Justice regulations separately created the position of “special counsel” by regulation.
The Act directed the independent counsel to investigate possible crimes by high-level government officials that include the President and Vice President. It also required federal office holders to disclose their financial details. It applied to the President, the Vice-President, senators, congresspersons, judges, candidates for those offices, Legislative Branch employees, and Executive Branch employees.
The Act created the Office of Government Ethics, and it detailed conflicts of ethics for federal employees who leave federal service. Congress has modified some of these provisions, and they remain part of federal statutes.
For only the special prosecutor/independent counsel chapter, Congress designed a five-year sunset provision. Congress extended the special prosecutor/independent counsel in 1983, in 1987, and again in 1994 (two years after it temporarily expired). Congress did not reauthorize the independent counsel chapter after it expired in 1999. Nonetheless, Justice’s special counsel regulations have remained in effect.
III. If the sun had not set on the Act, it would have required Rosenstein to decide whether to appoint an independent counsel.
The Ethics in Government Act would have required the Attorney General to “conduct a preliminary investigation . . . whenever [he or she received] information sufficient to constitute grounds to investigate whether [the President] may have violated any Federal criminal law.” Attorney General Jeff Sessions, however, would have had a conflict of interest in deciding whether to appoint an independent counsel because he participated in the Trump campaign.
Congress already foresaw this possibility. It recognized that sometimes the investigation could involve the Attorney General, and the Act accounts for that. If the information on possible violations of United States criminal law involves the Attorney General, the Act assigns responsibility to the next-most senior, uninvolved Justice official.
Here, the information on ties between the Trump campaign and Russia involve Sessions because he was assisting the Trump campaign and met with Russian officials during that campaign.
Indeed, Sessions already recused himself in a press conference, by stating that, “senior officials . . . said that since I had involvement with the campaign, I should not be involved in any campaign investigation. I have studied the rules and considered their comments and evaluation. I believe those recommendations are right and just.”
After the Attorney General, the Deputy Attorney General is “the next most senior official in Justice.” Therefore, the Act would have required Rosenstein to decide whether to recommend appointing an independent counsel.
IV. If the Act had remained in effect, Rosenstein would have reported to the Special Division Court on whether to recommend appointing an independent counsel.
Under the Act, Rosenstein would have reported to the Special Division Court. The Act created that court to include three judges or justices, each from different federal courts. If Justice recommended appointing an independent counsel, the Special Division would have appointed a particular prosecutor.
The independent counsel’s identity and the scope of his or her jurisdiction would have remained secret unless and until one of two events occurs. First, the Justice or the Special Division could have disclosed that information if either body had decided that doing so would have advanced the best interest of justice. Second, if the independent counsel indicted anyone for a federal crime, the court fillings would have revealed the independent counsel’s identity and jurisdictional scope.
V. If the Special Division Court had appointed an independent counsel, that prosecutor would have gained broad powers.
The Ethics in Government Act gave independent counsel broad powers to investigate and to prosecute crimes. They could use grand juries and subpoenas to investigate crimes,Review and obtain national security clearances,Negotiate witnesses immunity to over crimes and request immunity from courts,Inspect, obtain, or use tax returns,Obtain personnel assistance from Justice, including the FBI, andObtain access to Justice and FBI files.
The Act required the independent counsel to “advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment.”
Theodore Olson objected to the independent counsel statutes as unconstitutional because of these broad powers and the unorthodox method by which the judicial branch appointed a prosecutor. After a request from the House Judiciary Committee, Justice had assigned an independent counsel to investigate whether Olson had committed a crime by giving the Committee false and misleading testimony. Olson had testified related to a Committee investigation into the EPA and did not disclose all of the documents the Committee had requested. In a 1988, eight-to-one opinion, the Supreme Court rejected those arguments and upheld the independent counsel position as a valid separation of powers.
VI. The Department of Justice regulations require a Special Counsel.
Although the Act’s independent counsel provisions have expired, Department of Justice regulations require Rosenstein to appoint a Special Counsel. They require him to do so in “extraordinary circumstances” or to advance “the public interest.” Firing Comey undermines the Rule of Law and that action qualifies as an extraordinary circumstance.
Indeed, this situation reflects the very reasons Congress passed the Ethics in Government Act in the first place.
Like the Act, the regulations require the Deputy Attorney General to act if the Attorney General has recused himself. The regulations require Justice to appoint someone from outside the United States government. When Justice appoints a special counsel, the regulations also require Justice to report to the majority and minority staff of the judiciary committees in both houses.
Special counsels exercise “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Although the regulations prohibit anyone at Justice from supervising a special counsel on a “day-to-day” basis, they authorize Justice to veto any investigatory or procedural step. Therefore, a special counsel would have powers and authority sufficient to investigate connections between the Trump campaign and Russia, and the regulations compel Rosenstein to appoint a special counsel.
VII. The President violated the Rule of Law.
By firing the lead law enforcement officer investigating crimes the President may have committed, the President has violated the Rule of Law. The Rule of Law requires the laws to apply equally to all citizens regardless of their positions within the government.
A politician binds himself “within the limits of [the] laws” or “degenerates into a tyrant.”
In 1609, King James I of England recognized that a politician binds himself “within the limits of [the] laws” or “degenerates into a tyrant.” Jeremy Bentham recognized “that part of [the King’s] promise was to govern in subservience to Law: that hereby a more precise rule was laid down for his conduct, by means of this supposal of a promise, than that other loose and general rule to govern in subservience to the happiness of his people: and that, by this means, it is the letter of the Law that forms the tenor of the rule.”
By seeking different treatment under the criminal laws solely because he is President, President Trump has also violated the Fourteenth Amendment. That amendment implements the Rule of Law to require the law to treat all citizens equally.
Congress has also concluded that firing Executive Branch officials to impede an investigation violates the Rule of Law. For that reason, it enacted the Ethics in Government Act.
Therefore, violations of the Rule of Law qualify as “extraordinary circumstances” under the Justice regulations, and those regulations compel Rosenstein to appoint a special counsel to complete the investigation.
 Pub. L. No. 95-521, 92 Stat. 1824 (codified as amended at 28 U.S.C. §§ 591-599) (Oct. 26, 1978); Morrison v. Olson, 487 U.S. 654, 685-689 (1988).
 92 Stat. 1873 (“This chapter shall cease to have effect five years after the date of the enactment of this chapter, except that this chapter shall continue in effect with respect to then pending matters before a special prosecutor that in the judgment of such special prosecutor require such continuation until that special prosecutor determines such matters have been completed.’.”).
 Id. § 601, 92 Stat. 1867.
 Ethics in Government Act Amendments of 1982, Pub. L. No. 97-409, 96 Stat. 2039 (Jan. 3, 1983) (“Chapter 39 of title 28 of the United States Code is amended by—(A) striking out ‘special prosecutor’ wherever it appears and inserting in lieu thereof ‘independent counsel.’”).
 26 C.F.R. Part 600.
 28 U.S.C. § 591(b). The list also includes the Director of Central Intelligence, the Deputy Director of Central Intelligence, the Commissioner of Internal Revenue, Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, United States Trade Representative, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security, Director of the Office of Management and Budget, Commissioner of Social Security, Social Security Administration, Director of National Drug Control Policy, Chairman, Board of Governors of the Federal Reserve System, and Director of National Intelligence. 5 U.S.C. § 5312; see 28 U.S.C. § 591(b)(2) (incorporating Section 5312 by reference).
 Pub. L. No. 95-521 §§ 101-309, 92 Stat. 1824.
 Id. § 401-406.
 Id. § 501-503.
 Ethics in Government Act Amendments of 1982 § 7, 96 Stat. 2039, 2042.
 Independent Counsel Reauthorization Act of 1987 § 2, 101 Stat. 1293, 1306 (Dec. 15, 1987).
 Independent Counsel Reauthorization Act of 1994 § 2, Pub. L. No. 103-270, 108 Stat. 732 (June 30, 1994).
 28 U.S.C. § 591(a).
 28 U.S.C. § 591(e)(1)(A) (“If information received under this chapter involves the Attorney General, the next most senior official in the Department of Justice who is not also recused shall perform the duties assigned under this chapter to the Attorney General.”).
 Aaron Blake, Transcript of Jeff Sessions’s recusal news conference, annotated, Washington Post (Mar. 2, 2017), available at https://www.washingtonpost.com/news/the-fix/wp/2017/03/02/transcript-of-jeff-sessionss-recusal-press-conference-annotated/?tid=a_inl&utm_term=.4dd162e8f818#annotations:11442037 (emphasis added); Sessions’s oral recusal would not have satisfied the Act. See 28 U.S.C. § 591(e)(2).
 See 28 C.F.R. §§ 0.1, 0.15.
 28 U.S.C. § 49; Morrison, 487 U.S. at 661; see also Bryan Toth, Organization of U.S. Court System, available at https://www.slideshare.net/bmtoth/organization-of-us-court-system (slide 10).
 28 U.S.C. § 593(b)(1), (b)(3).
 28 U.S.C. § 594(a), (d); Morrison v. Olsen, 487 U.S. 654, 662-63 (1988).
 28 U.S.C. § 595(c).
 Morrison, 487 U.S. 654.
 28 C.F.R. Part 600.
 28 C.F.R. § 600.1(a).
 Id. § 600.1.
 28 C.F.R. § 600.3(a) (“The Special Counsel shall be selected from outside the United States Government.”).
 28 C.F.R. § 600.9(a)(1).
 28 C.F.R. § 600.6.
 28 C.F.R. § 600.7(b) (“the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”). The regulations require the special counsel to report to the highest-ranking, non-recused Justice official at least every ninety days. 8 C.F.R. § 600.8(a)(2).
 Speech to Parliament (1609) (quoted in John Locke, Second Treatise 189).
 A Fragment on Government 54.
 FCC v. Beach Comm’ns, 508 U.S. 307 (1993) (holding that the United States’ Due Process Clause allows the United States to treat different groups differently only if it could have rationally been classifying those groups, under some set of facts, to accomplish a legitimate governmental interest); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40 (1973) (same under the Equal Protection Clause).