Arguments Against a Special Counsel per DOJ:
- Like a federal prosecutor, a special counsel in the Department of Justice can’t bring a case before a court unless its investigators find evidence of a crime.
- Special counsel investigators are usually FBI. If the special counsel agrees that there is a conflict of interest in bringing FBI investigators into the fold it would have to select a different team of investigators to aide in the case.
- The special counsel could use the Post Master General or the DEA but those investigators would be far behind the DOJ’s Inspector General investigators, who have already been working on the cases.
- Federal prosecutors, special counsels, and those attorneys working with them do not “conduct” investigations. DOJ officials told me that the process is much like the TV show law and order where law enforcement brings evidence of a crime and then the prosecutor puts together a case to be brought before the court.
- The DOJ Inspector General is an independent office that investigates possible violations of criminal and civil law by employees of the FBI and its own department.
- The Inspector General reports to the Attorney General and to Congress.
- The IG’s Investigations Division Special Agents develop cases for criminal prosecution, civil or administrative action.
- Inspector General’s office acts similar to the FBI in that it has the authority to investigate wrongdoing and collect evidence.
- The Inspector General has the power to subpoena and present cases for criminal prosecution to the Attorney General.
Arguments For a Special Counsel, per Congressional Members:
- An independent arbiter because the FBI and DOJ cannot investigate themselves.
- Any criminal referral from the Inspector General will go to Attorney General Jeff Sessions for prosecution and he has not made clear the scope of his involvement in the cases.
- Republicans and some senior government officials say there is no rational argument for letting current Special Counsel Robert Mueller, who was the former head of the FBI, expand his special counsel investigation. It won’t work because of Mueller, as the former director of the FBI, is conflicted out.
- Robert Mueller’s investigation crosses into the territory of the unsubstantiated and salacious dossier, he is after all supposed to be investigating alleged collusion between Russia and President Trump. And he’s reportedly using the unverified dossier crafted by former British spy Christopher Steele in his investigation. A dossier, which Steele, told the British courts is not verified.
- Mueller has close previous working relationships with many of the same players he would be investigating. For example, former Deputy Director Andrew McCabe, former FBI Director James Comey, to name two.
- The American public won’t buy into an investigation by Mueller, the DOJ or FBI.
- Attorney General Jeff Sessions has never clearly stated where his recusal begins and ends.
- A second special counsel needs to come from outside Washington D.C. with its own team of impartial, hand selected investigators.
A second special counsel might investigate any or all of the following: possible criminal violations by senior FBI and DOJ officials in obtaining a warrant to spy on a former Trump campaign volunteer, the bureau’s handling of the investigation into Hillary Clinton’s use of a private email server to send classified information and whether senior Obama administration officials, including the president, were aware of the use of the unverified dossier to open an investigation into the Trump campaign and possible Russian collusion.
“You need an independent arbiter, and the Department of Justice cannot investigate itself”
Rep. Trey Gowdy (R-SC)
The investigations could also be conducted by DOJ Inspector General Michael Horowitz, who is expected to conclude his much-anticipated report into the FBI’s handling of the Clinton server investigation in the next several weeks and who Attorney General Jeff Sessions has asked to investigate possible FISA warrant abuse against Carter Page, who briefly volunteered for the Trump campaign in 2016.
Republicans, however, are not satisfied and are now pushing Sessions, who is recused from the Russia investigation, to appoint a special counsel. DOJ officials are arguing against it, telling this reporter that Horowitz and his team can conduct the unbiased investigation and refer potential people to the DOJ for criminal prosecution.
The situation can be confusing to anyone outside Washington D.C. One Republican congressional member, who spoke on background, questioned, “how long will it take for Horowitz to investigate and if he does make a criminal referral for prosecution, it will have to go back to Sessions, who apparently has recused himself from all matters Russia and apparently everything else. I don’t see how we have any choice but to get a second special counsel.”
Rep. Jim Jordan, R- Ohio, who has proposed the idea for a special counsel since last year, said although he “wishes there was another way around it, there appears to be no other course of action.”
“I think Sessions needs to appoint a second special counsel and they need to be somebody from outside the swamp, like a retired judge, someone that can select his or her own team of investigators,” said Jordan. “I don’t see any other course of action that would be acceptable to anybody involved, including Republicans, Democrats and the American people.”
Five days ago, President Trump called out Sessions for his decision to turn over the investigation into possible abuse by the FBI when it sought a warrant to spy on Page from the Foreign Intelligence Surveillance Court, the most secretive court in the United States with the authority to grant warrants to surveil Americans.
Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. Will take forever, has no prosecutorial power and already late with reports on Comey etc. Isn’t the I.G. an Obama guy? Why not use Justice Department lawyers? DISGRACEFUL!
— Donald J. Trump (@realDonaldTrump) February 28, 2018
Sessions stated in a response to Trump, “we have initiated the appropriate process that will ensure complaints against this Department will be fully and fairly acted upon if necessary. As long as I am the Attorney General, I will continue to discharge my duties with integrity and honor, and this Department will continue to do its work in a fair and impartial manner according to the law and Constitution.
And it may be that there are already investigations ongoing inside the DOJ that the public is unaware of. Several
“The IG can only really investigate the people who are there (under his authority) but not the people who have left”
Rep. Matt Gaetz (R-FL)
government officials who have defended Sessions said that any ongoing investigations requested by Congress if they exist, would not be leaked or discussed publicly.
However, there may be clues. In a Nov. 13, 2017 letter to House Judiciary Chairman Bob Goodlatte, R-VA, Assistant Attorney General Stephen Boyd told congressional members that the DOJ had appointed senior prosecutors who would report “directly to the Attorney General and the Deputy Attorney General, as appropriate, and will make recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation, require further resources, or whether any matters merit the appointment of a Special Counsel.”
DOJ officials could not comment on whether or not these prosecutors assigned by Sessions last year have uncovered any wrongdoing or what specifically the prosecutors were currently investigating. Boyd’s letter did stress that all congressional requests from the approval to grant Russia the sale of the Canadian firm Uranium One, which at the time had access to 20 percent of American mining rights, and requests for investigations into FISA abuse were being looked into.
But for Jordan and many other Republicans, the deafening silence out of DOJ is difficult to understand. And now many lawmakers are asking Sessions to do what he is apparently fighting against and appoint a new special counsel.
For the first time, Rep. Trey Gowdy, R-SC, told Fox News “Sunday Morning Futures” with Maria Bartiromo, “you need an independent arbiter, and the Department of Justice cannot investigate itself.”
“Horowitz is a fair guy, but when there are two dozen witnesses that have left the department or worked for another agency, someone else has to do it and I am reluctant to call for special counsel, but I think it may be unavoidable in this fact pattern,” Gowdy said.
Rep. Matt Gaetz, R-Florida, is also calling for a second special counsel and echoed Gowdy in a call with this reporter Monday, saying “the IG can only really investigate the people who are there (under his authority) but not the people who have left.”
So far, Chairman of the House Intelligence Committee Devin Nunes, R-CA, has not weighed in on whether or not he believes the appointment of a special counsel is necessary to investigate many of the same issues his committee is looking into. Some congressional members, who spoke to this reporter, say it’s only a matter of time before Nunes joins the chorus of Republicans demanding the investigation.