Update (5/17, 6:45 PM ET): The Department of Justice appointed Robert Mueller, Former F.B.I. Director, to serve as a special counsel on the Russia Investigation. This would not have happened without the immense pressure from the public, and from Indivisible groups around the country. Mr. Mueller now must be allowed to conduct a truly independent investigation, without further interference from the Trump administration.
Unfortunately, even when faced with this constitutional crisis, the vast majority of Republicans in Congress chose to sit on their hands and evade their sworn duty to defend our democracy. They must be held accountable for their choice to stand with Trump over truth.
Update (5/16, 7:00 PM ET): The New York Times, the Washington Post, CNN, and others have reported that former FBI Director James Comey wrote a memo in February detailing a private conversation with Donald Trump where Comey was asked to end the Michael Flynn investigation. This is the clearest indication yet that Donald Trump directly interfered with an ongoing criminal investigation. This is the definition of obstruction of justice. This also raises more questions regarding the motive behind Comey’s firing on May 9, 2017. The American public deserves answers.
Update (5/15, 8:00 PM ET): The Washington Post has reported that Donald Trump revealed classified information during a meeting with Russian officials the day after firing Director James Comey. By doing so, Trump has put American national security, and the American people, at risk. This only adds greater urgency for the need for a special prosecutor to investigate Russian ties to the Trump administration.
All signs suggest Trump fired FBI Director James Comey to kill the FBI’s Russia investigation. We know that the Russia investigation was on Trump’s mind when Comey was fired, because Trump himself said that. In an interview with NBC on May 11, Trump said, “And in fact when I decided to just [fire him], I said to myself, I said ‘you know, this Russia thing with Trump and Russia is a made-up story.’”
This is about American democracy, not political party. Whether you voted for Trump or not, whether you’re a Democrat or a Republican, Independent or other, what just happened should frighten you. The President of the United States essentially admitted to obstructing justice, and feels he has absolute impunity to do it.
By firing Comey, and involving his Attorney General and Deputy Attorney General, Trump has shown us why an independent investigation is so urgent. This investigation must be independent, and must have the power to prosecute if it’s determined that a crime occurred.
There are several possible ways that our laws and regulations allow for an independent investigation:
- Special counsel/special prosecutor appointed by the Attorney General
- Special prosecutor/independent counsel authorized by Congress
- Independent commission created by Congress
In this explainer, we’re giving you a breakdown of each investigation, how each is created, and how independent each is likely to be, so that you understand the options available to us in demanding that Congress hold Trump accountable to the law. Be sure to also read our explainer about active Russia investigations in Congress, and how to take action with your Member of Congress.
1. Special Counsel (aka Special Prosecutor: Appointed by Attorney General)
Under Federal regulations, the Attorney General or (when recused) the Deputy Attorney General, has the power to appoint a Special Counsel from outside the Department of Justice to hold an investigation requiring independence and autonomy, including the power to prosecute.
- Strengths of this approach: A special prosecutor would have the ability to bring charges if a crime has been committed, and would be independent from the Department of Justice day-to-day. Given DOJ’s role in firing Comey, this option has become more politically feasible than it was previously.
- Weaknesses: The Attorney General/Deputy Attorney General can review and reject decisions made by the special prosecutor, or remove him/her for misconduct, dereliction of duty, incapacity, conflict of interest or other good cause. Investigations are conducted in secret, so the public will not know much of what is going on.
2. Special prosecutor/independent counsel authorized by Congress
In 1978, Congress passed the Ethics in Government Act, which authorized the appointment of an Independent Counsel with the full power to investigate and prosecute (similar to any Department of Justice investigation). Although the Ethics in Government Act expired in 1999, it set a key precedent that Congress could revisit to ensure that Administration officials who have violated federal criminal law are held accountable.
- Strengths of this Approach: If Congress passes a law similar to the Ethics in Government Act, this is potentially the strongest approach substantively. Like a special counsel, an independent counsel could bring criminal charges. Unlike a special counsel, the decisions of an Independent Counsel were not reviewable or subject to approval by the Attorney General, and an Independent Counsel had autonomy to act outside of the internal review guidelines of the Department of Justice.
- Weaknesses: This is very hard to pass politically, and would require the House and Senate pass a bill by a veto-proof margin. Investigations are conducted in secret, so the public will not know much of what is going on.
3. Independent Commission—Created by Congress
Congress could vote to create an independent commission, like after the September 11, 2001, terrorist attacks, to investigate Russia and ties to Trump.
- Strengths of this approach: If structured well, the commission could be fairly independent. Could provide a more public airing of the facts than either a special prosecutor or an independent counsel.
- Weaknesses: Would likely not have any prosecutorial powers, although it would be able to issue subpoenas. Politically difficult to pass. Vulnerable to partisanship, depending on structure and membership.
This table summarizes the key aspects of each type of investigation:
|Special Counsel||Independent Counsel||Independent Commission|
|Appointed By||AG or Deputy AG (if AG recused); Decision not reviewable by Congress||Under 1978 law, either a three-judge panel or the AG, depending on the circumstances||Created by a vote in Congress, structured and staffed per the authorizing law|
|Requires passing a new law?||No||Yes—1973 Ethics in Government Act lapsed and Congress would need to pass a new law.||Yes|
|Independence||Strong—appointment of a Special Counsel is not reviewable by Congress, although Counsel must operate within DOJ guidelines.||Potentially the strongest (if a similar bill is passed to 1973 law): not required to get AG approval of actions, decisions not reviewable by AG.||Depends entirely on the design of the Commission; Congress|
|Prosecutorial Powers||Yes||Yes||Likely no, subpoena power only|
|Oversight||AG or Deputy AG can review decisions||If a similar bill is passed to the 1973 law, AG or Deputy AG cannot review decisions.||Will depend on the law passed|
|Investigations conducted in public?||No||No||More public than other options|
|Historical example||Watergate||Ken Starr||September 11 commission|
|Likelihood||Growing—the Deputy AG has the power to appoint a Special Counsel today; Republican Senators need additional pressure but might be willing to support after Comey’s firing.||Congress would need to pass a new law that would need to be signed by the President or passed with a veto-proof majority||Congress would need to pass a new law that would need to be signed by the President or passed with a veto-proof majority. That said, the chances of this happening are probably more likely than the chances of getting an independent counsel law.|
While there are a number of avenues for establishing an independent investigation, in the short term it makes sense to push for having the Deputy Attorney General appoint a Special Counsel/Special Prosecutor. A special prosecutor has the power to prosecute, is fairly independent and autonomous, and seems most politically viable at the moment. These options are not mutually exclusive, however; the ideal option would be to have an independent commission in addition to a special prosecutor.