Posted by Curt on 14 May, 2017 at 4:58 pm. 1 comment.


Ken Klukowski:

Calls for a special counsel to pursue a possible Russia investigation are dead wrong on the law, as are calls for Attorney General Jeff Sessions not to advise President Trump on selecting a new FBI director. This is politics at its most cynical.

The U.S. Department of Justice (DOJ) leads investigations, not the Federal Bureau of Investigation. The FBI conducts the investigation under the supervision of either U.S. attorneys’ offices or Main Justice. Supervising the FBI is a central part of any attorney general’s job. And special counsels are never independent of DOJ, because independent counsels (which are different from special counsels) are unconstitutional, which is why the law that formerly authorized them has not existed for almost 20 years.

The deputy attorney general is supervising any possible FBI investigation into Russia.

Every FBI director serves at the pleasure of the president, so President Trump had undisputed legal authority to fire Director Comey on Tuesday. Months earlier, Attorney General Jeff Sessions recused himself from any investigation involving possible ties between the Trump campaign and Russia, a move that Sessions made to ensure public confidence in the investigation, since he was not legally or ethically required to step aside.

As a result, any Russian investigation came under the supervision of the U.S. attorney for the Eastern District of Virginia—Dana Boente, who was appointed by former President Barack Obama—then was taken up by Deputy Attorney General Rod Rosenstein once he was confirmed as second in command at DOJ.

DOJ leads legal investigations, not the FBI. Only DOJ can empanel a grand jury, ask a court for discovery, or initiate a prosecution. FBI investigators answer to the prosecutors at DOJ. Comey was never in charge of any investigation; in the absence of the attorney general, his role is filled by the acting attorney general: first Boente, now Rosenstein. So removing Comey does not stop any investigation.

Moreover, Comey’s powers to carry out investigations (under DOJ supervision) have transitioned to Deputy Director Andrew McCabe, who has ties to the Democratic Party, and longtime Clinton ally Virginia Gov. Terry McAuliffe in particular. This is hardly cause for concern if you want the Trump campaign investigated.

In summary, Comey was conducting any possible investigation last week, supervised by Rosenstein. Today, McCabe is conducting any possible investigation, supervised by Rosenstein. DOJ and the FBI have the same operational relationship today that they had a week ago. Nothing has been disrupted.

But Democrats are nonetheless crying foul, demanding a special prosecutor be appointed. Some also argue that Sessions should not play any role in helping Trump find a new FBI director. Both contentions are absurd.

Overseeing the FBI is a central part of any attorney general’s job.

Sessions’s recusal from a possible Russian investigation is not a recusal from supervising the FBI. Over 110,000 people work at DOJ under the attorney general. The FBI is a component agency of DOJ, and employs 35,000 people. Overseeing the FBI is an enormous part of the attorney general’s duties. Suggesting that Sessions’s recusal means he cannot oversee the FBI or supervise FBI leaders would mean that Sessions cannot do his job.

That is obviously not what Sessions said, and no reasonable person would suggest that his recusal means that. Instead, recusal here means merely that he would not make decisions on whether to start an investigation into Russian ties, supervise the actions of FBI leaders and agents as they investigate, execute search warrants, gather evidence, and interview witnesses, nor review the reports of any investigation’s progress regarding Russia, or decide whether to bring charges to anyone in the president’s orbit when it comes to Russia. It does not extend to any other aspect of his duties as attorney general.

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