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Democrats are demanding a special prosecutor on Russia. What does that mean?




FBI director James Comey speaks during a news conference at the Phillip Burton Federal Building on February 27, 2014 in San Francisco, California. (Photo by Justin Sullivan/Getty Images)
FBI director James Comey speaks during a news conference at the Phillip Burton Federal Building on February 27, 2014 in San Francisco, California. (Photo by Justin Sullivan/Getty Images)
Justin Sullivan/Getty Images

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Tuesday's announcement that President Trump had fired FBI Director James Comey appeared to take lawmakers of both parties off guard.

The axe dropped during a federal investigation into Russian meddling in the 2016 election, including a probe of possible ties between Donald Trump's campaign and Russian operatives.

Democrats are now raising the volume on calls for the appointment of an independent prosecutor.

Critics of the Comey firing are asking: How will the investigation proceed without the FBI director, and can the American people expect it to be truly independent?

Professor Laura Donahue with Georgetown Law joined A Martinez to explain the legal possibilities ahead for the Russia investigation. Donahue is Director of the Center on National Security and the Law.

Some lawmakers are calling for a "special prosecutor" and others are saying we need a "special counsel." Are we talking about the same thing?

No, in short. There is no special prosecutor position right now. Previously there was something called an independent counsel that was in the Ethics in Government Act introduced, as many listeners will remember, from the Saturday Night Massacre that President Nixon orchestrated.

Congress stepped up and said 'we need to have somebody who is independent.' They set up an elaborate system where you had a special panel of judges who would then appoint a prosecutor, and the prosecutor was largely immune from any political interference.

The Supreme Court found it was constitutional for them to do that in a case called US vs. Nixon. But it turned out it was dangerous to have a prosecutor kind of running amuck, without any sort of check on that authority.

So in 1999, Congress let that power expire. So what we're talking about now is called a special counsel, which is a position provided for in the Code of Federal Regulations. 

A special counsel would be appointed by the Attorney General. Of course in this case, it wouldn't be Jeff Sessions who could do this, because he's had to recuse himself from all matters related to the Russia probe. Instead it would be done by the Deputy Attorney General, and that individual would have the authority to look into the situation.

Would this person be independent of the President's authority? Could President Trump fire them?

The Attorney General, and in this case the Deputy AG, would be able to fire this person, yes.

There are certain conditions on appointing somebody. A criminal investigation has to be warranted, the Department of Justice has to somehow have a conflict of interest or there has to be another extraordinary circumstance, or it has to be in the public interest.

The decision--whether or not to appoint somebody and who is appointed--that is not reviewable by any court. That's entirely in the domain of the Attorney General. 

What about the House and Senate investigations, how are they different from the FBI or a special counsel's?

An FBI investigation is going to be a traditional, ordinary criminal investigation where there's a preliminary investigation and then a full investigation. That's what's under way currently, and that's why there's been such a political firestorm about removing director Comey from the position.

The special counsel essentially has all the authorities of a U.S. Attorney, in addition they have additional resources made available to them, and the AG can set the jurisdiction for that person in the special counsel position.

Now, if Congress were to act--there has already been broad bipartisan support--you have Senator McCain and Representative Justin Amash all calling for a new special committee to be set up, like the Church Committee was set up. In that case the only thing that such a committee could do would be to subpoena individuals and then issue a report.

That's very different from giving someone who is familiar with the inner workings of the Justice Department and acting in a prosecutorial capacity the ability to look at all of the classified materials and the ability to bring criminal charges after the fact. It's a very different function.

Just to be clear: The House and Senate, as far as they can go is to issue a report, and that's where it stops?

Pretty much, yes. There are further steps they can take if they want to remove the President from office. But that's a constitutional matter, not for the committee to decide. The committee can only subpoena individuals and then issue a report.

Will the firing of the FBI director knock the Russia investigation off track?

It's not clear what's going to happen actually inside the FBI in terms of the investigation itself, and how insulated it was or was not from the director's position.

CNN is reporting that before Comey's firing, federal prosecutors had just issued grand jury subpoenas to associates of former National Security Advisor Michael Flynn. What does that tell you about the status of this investigation?

That it's heating up. It's a pretty serious investigation that's underway, which is again why I think you see such a political backlash to this right now... This is deeply concerning, the level to which Russian ties appear to keep coming to the surface. 

The interview has been edited for clarity. To hear the full conversation, click on the blue media player at the top of the page.