Rational Discussion of Controversial Topics


ChristianKl 9 February 2016 01:26 PM

For answering the question well, we have to ask for what regulations guide the appointment of special prosecutors.

While googling I can find which does explicitely lists cases where a special prosecutor can be brought forward that are about investigations of judges and defense counsels that defend clients under the jurisdiction of the prosecutor’s office.

I don't think being an influentlial politician fits into either of those classes. Both of them also are not about ideological conflicts of interests.

Do you think there a policy document for the DOJ that specifies that special prosecutors should be appointed in cases like this?


is4junk 11 February 2016 06:30 PM

The law governing the Special Prosecutor gives the policy to follow.

§ 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.


ChristianKl 12 February 2016 04:59 AM

So basically there are three tests that all have to be passed:

1) The Attorney General determines that a criminal investigation is warranted.
2) There a conflict of interest.
3) It's in the public interest to appoint outside counsel.

As far as 1) goes, I'm not sure whether the current Attorney General thinks that a criminal investigation is warranted. As I said above, the fact that a crime is committed doesn't mean that the Attorney General has to decide that a criminal investigation is warranted.
But he might very well decide that when the FBI recommends it.

As far as 2) goes, I'm not sure of the prior history. Is the persecution of secretaries of that that are out of office for a few years and that haven't hold the office of attorney general generally considered a conflict of interest?
You can also argue that the fact that she's a presidential candidate means that there a conflict of interest as members of the DoJ care profesionally about who's the new president.
In both cases those questions seem like there should be prior art.

As far as 3) goes, that's again debateable. Generally running criminal investigation on politicians in front of elections is a hallmark of failed states. I'm not sure that the weight of the crime of handling top secret information in an illegal fashion outways that. For top ministers and their stuff handling secret information in an illegal fashion is commenplace and you could basically run such a suit against any minister that you don't like because his department leaked information to whistleblowers.