The Legitimacy of Trump's Independent Counsel's Authority
WASHINGTON, District of Columbia (the 21st of November, 2022) – The newly appointed special counsel, John Smith, will have more prosecutorial power and authority than other recent special counsels, and the order appointing him seems clearly aimed at former President Donald Trump, according to at least two well-known law professors. This information was provided by Attorney General Merrick Garland when he announced the appointment of John Smith.
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When Acting Attorney General Rob Rosenstein appointed Robert Mueller to head an investigation into accusations of Russian meddling in the presidential election of 2016 and other matters pertaining to the inquiry,
In the order that made it official, it was stated that Mueller had been given permission "to prosecute federal offenses stemming from the examination of these issues," but that this permission was only to be used "if the Special Counsel deems that it is necessary and appropriate." [emphasis added]
A similar provision was included in the order that Attorney General Bill Barr used to appoint Special Counsel John Durham. The order stated that "If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from his investigation of these matters." [strong emphasis mine]
Therefore, the prosecution authority of these special counsel was specifically confined by both former appointments, which were made before this one, to instances in which it was both "appropriate" (for example, if there was adequate evidence) and "necessary."
A substantially higher bar or limitation because there may be many situations in which a prosecution might be appropriate but not deemed "necessary" after various discretionary policy factors are weighed. This may be the case because there are many situations in which a prosecution might be appropriate.
In addition, the Independent Counsel Statute that came before it, which has since been allowed to expire, stated that "an independent counsel appointed under this chapter" had the authority to take part "in court proceedings and engag[e] in any litigation, including civil and criminal matters, that such independent counsel considers necessary." This provision has since been allowed to expire. [strong emphasis mine]
Therefore, despite the fact that it was not deemed "necessary" to do so, Garland gave Smith the authority to pursue criminal prosecutions even when doing so was not deemed to be "necessary." This action demonstrates that it was not merely an oversight nor an act of simple negligence caused by a failure to include a key word that had been included in previous authorizations.
Even if it does not appear to be essential to do so, he specifies in his order that "The Special Counsel is authorized to pursue federal offenses stemming from the examination of these matters."
Josh Blackman, a constitutional scholar and professor of law at South Texas College of Law, and John Banzhaf, a professor of public interest law at George Washington University Law School agree that a further examination of the text of the order makes it abundantly clear that the appointment is directed specifically at Trump.
Even though Smith is expressly authorized to investigate "any person or entity [that] violated the law in relationship with efforts to infringe with the lawful transfer of power," "this executive order does not apply to... investigations and prosecutions of individuals for offenses they committed while physically present on the grounds of the Capitol on January 6, 2021," for example, "this executive order does not apply to... the investigations and prosecutions of individual people for wrongdoings they committed while physically present on the grounds of the Capitol on January 6, Naturally, Trump was not there in person for the ceremony. He was not there.
Therefore, in the words of Blackman, "The prosecution need not be 'necessary.' Smith has the go-ahead to indict Trump." And Trump is really irate, albeit not for the reasons he has given previously. the assertions of Banzhaf.
Trump is Afraid Of
Despite accusations that it is a "endless witch hunt," "rigged deal," and "horrendous misuse of power," the investigation continues. According to Banzhaf's speculations, the real reason that Donald Trump is so concerned about the appointment of a special counsel to oversee any and all federal investigations and possible prosecutions of him is the fact that this would render invalid what would otherwise be his "Get Out of Jail Free" card. I'll explain why.
According to Banzhaf, the appointment of Smith was made on Friday after Garland received a formal legal demand for such an appointment that was submitted Tuesday night after Trump's statement that he will run for president in 2024, maybe against President Joe Biden.
Previous legal filings by Banzhaf helped obtain special prosecutors for the former president Richard Nixon, a court order requiring the appointment of an independent counsel to investigate Debategate, and an ongoing grand jury investigation of Trump in Georgia. In addition, Banzhaf's filings helped obtain an independent counsel to investigate Debategate.
His submission of the letter demanding that Trump appoint a special counsel began a legal clock ticking, which would have obliged Garland to either appoint the special counsel or swiftly explain why he would not do so.
As stated in Banzhaf's legal filing, "This constitutes a 'written application' or 'other request,' which requires, accordance with the provisions to 5 U.S. Code 555, that the Attorney General 'provide prompt notice,' as well as a 'brief statement of the grounds for denial,' if it is turned down and no such reservation is made." If it is turned down and no such appointment is made, the Justice Department is required to provide a "prepared summary of the grounds [strong emphasis mine]
The submission of the formal demand document by an individual who has a history of great success with submissions of this kind, and who has shown that they are willing to go to court for enforcement if it becomes necessary, was probably one factor among a number of others that led to Garland's decision to reverse his previous position and instead choose to make the appointment.
If Garland, after Trump's announcement, and in the face of a formal legal demand, continued to refuse to make an appointment, his obvious violation of the legal duty imposed upon him by 28 CFR 600.1 would have provided a compelling argument for a judge to quash any federal indictment which might have been obtained – and/or overturn any conviction which resulted – in violation of the binding law, according to Banzhaf's argument. This would have been the case because Garland would
In other words, if Trump had continued to defy the law, which states that he "will" appoint a special counsel if prosecution under his own direction "would present a conflict of interest," then he would have been given a get-out-of-jail-free card. According to Banzhaf, this would have been the most effective defense that Trump could possibly have under the given conditions.
The fact that the governing rule makes use of the term "will" rather than words that are more liberal, such as "will," "should," or "may," highlights the fact that the legal obligation is obligatory and does not provide any opportunity for the exercise of any discretion whatsoever.
Even though pundits may speculate about the extent to which the appointment may or may not shield Garland and the Department of Justice from criticism, or satisfy critics who believe political considerations are behind some decisions such as the Mar-a-lago raid, Garland legally does not have the discretion to consider such issues when deciding whether or not to make the appointment. This is the case despite the fact that pundits may speculate about the issue.
If a straightforward criterion is satisfied - if prosecution under his guidance "would constitute a conflict of interest" – the law mandates that he appoint a special counsel, and according to Banzhaf, this is the decision that a judge would make if the case were brought before a court.
According to the document filed in court, if the appointment of a special prosecutor is delayed much longer, it will provide Donald Trump with a "Get Out of Jail Free" card in the event that he is ever found guilty of a crime. Specifically, the filing issued the following warning:
"A continuing refusal to follow the clear and unambiguous mandate of 28 CFR 600.1 to appoint a special counsel would provide a very strong argument to quash any indictment and/or reverse any conviction of Trump that might be obtained with a prosecution conducted by the Department of Justice," the Washington Post writes. "A continuing refusal to follow the clear and unambiguous mandate of 28 CFR 600.1 to appoint a special counsel would provide a very strong argument to quash any indict
A verdict that a conviction of Trump had been gained unlawfully would be a result that would further destroy an already divided and highly skeptical society, even to the point of perhaps creating bloodshed, if a court were to find that such a conviction had been secured.
In addition to this, it was mentioned that "The appointment of a special counsel would help assure millions of Americans convinced that Trump is being treated unfairly – fears recently rekindled by a decision to raid Trump's Mar-a-Lago residence rather than rely upon a subpoena or further negotiations to retrieve documents – that vital prosecutorial decisions are not being made by a person who would almost certainly be fired if Trump's bid for the presidency isn't derailed by further investigations."
Banzhaf stated that Garland, who is required to comply with any command given by Biden, is unable to fairly supervise the investigation and possible prosecution of a person whose election would undoubtedly lose both him and his boss their jobs. Garland is required to obey any order given by Biden.
Instead, what Garland has done is follow the unambiguous text of the statute, which mandates that he "shall" appoint a special counsel if prosecution under his supervision "would constitute a conflict of interest." Garland's decision to do this was based on the fact that the law requires him to do so.
And then guarantee that "Smith has a green light to indict Trump" by deliberatively omitting the mandate that such a prosecution be seen as "necessary." This is a requirement that would have limited Smith's authority by requiring him to exercise a significant amount of discretion, as Banzhaf comes to the conclusion.