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. full story
