Now that Attorney General Jeff Sessions has recused himself from any involvement in investigations by the Justice Department involving potential Russian interference in the 2016 presidential election, the authority to make decisions on the issue — including whether the appointment of a special prosecutor is necessary — falls to the deputy attorney general.
This turn of events gives the members of the Senate Judiciary Committee the power to demand a special prosecutor, if they choose to wield it.
There is currently no permanent deputy attorney general, just Acting Attorney General Dana Boente, a former U.S. Attorney who stepped in after Sally Yates, an Obama appointee, was fired. However, Donald Trump’s nominee, U.S. Attorney for Maryland Rod Rosenstein, will undergo confirmation hearings with the Senate Judiciary Committee this month.
And those Judiciary Committee members can now ask Rosenstein to commit to naming a special prosecutor before voting whether to send his nomination to the full Senate.
At least seven of the nine Democrats on the Judiciary Committee, including ranking member Dianne Feinstein of California, have publicly called for a special prosecutor to investigate potential criminal actions by Russian officials and any of Trump’s associates. South Carolina Sen. Lindsay Graham, one of the 11 Republicans on the committee, has said that “if there is something there that the FBI believes is criminal in nature, then for sure you need a special prosecutor.” If the nine Democrats and Graham acted as a block, they would have the power to prevent Rosenstein’s nomination from being voted out of committee.
There is direct historical precedent for this. In 1973, in the midst of the Watergate scandal, President Nixon nominated Elliot Richardson, then his secretary of defense, to be attorney general. Judiciary Committee members demanded that Richardson commit to appointing a special prosecutor to investigate Nixon. In fact, they went even further: Richardson was pressured to name who specifically he would appoint before the vote was held, and then both Richardson and his choice — one-time Solicitor General Archibald Cox — were questioned by the committee about the degree of independence Cox would have to pursue the investigation.
Only then did the committee vote to confirm Richardson, in May 1973. And once in office, he did appoint Cox. Richardson only served until that October, when he resigned in the famous “Saturday Night Massacre” rather than follow orders from Nixon to fire Cox, who had subpoenaed White House audio recordings. Solicitor General Robert Bork ended up in charge, and fired Cox.
The attorney general — or as in this case, his deputy — has the sole discretion under Justice Department regulations to appoint a special prosecutor “when he or she determines that criminal investigation of a person or matter is warranted” and such an investigation “would present a conflict of interest for the Department” and “it would be in the public interest to appoint an outside Special Counsel.”
Other special prosecutors in addition to Cox and his successor, Leon Jaworski, include Kenneth Starr, whose investigation of Whitewater eventually led to Bill Clinton’s impeachment, and Patrick Fitzgerald, who led the inquiry into the Valerie Plame affair.
Notably, Fitzgerald was appointed by then-Deputy Attorney General James Comey after Attorney General John Ashcroft recused himself from the investigation.
Attempts to reach multiple members of the Senate Judiciary Committee on Thursday afternoon failed, leaving unresolved the question of whether they will use the leverage they now possess. However, Feinstein and committee members Patrick Leahy, D-Vt., and Al Franken, D-Minn., reiterated their call for a special prosecutor after Sessions’s press conference this afternoon.