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Sun Mar 5, 2017, 02:45 PM

NYT: Who replaces AG after recusal; can special counsel be appointed, by whom & limits of power

Jeff Sessions Has Stepped Aside on Russia. Here’s Who Could Step In.



Who replaces the attorney general after a recusal?

The deputy attorney general steps into the shoes of the attorney general to make decisions about that particular investigation. The acting deputy attorney general is Dana J. Boente, the United States attorney for the Eastern District of Virginia, whom Mr. Trump temporarily elevated last month after firing Sally Q. Yates, who had been the deputy attorney general. Mr. Trump has nominated Rod J. Rosenstein, the United States attorney for Maryland, to be deputy attorney general, and he would replace Mr. Boente if confirmed.

Can a special prosecutor or an independent counsel be appointed?

No, because the law that created that type of prosecutor expired.

During the Watergate “Saturday Night Massacre,” President Richard M. Nixon ordered the firing of the prosecutor running the investigation into his White House. As part of the reforms afterward, Congress created a new type of prosecutor to look into high-level executive branch wrongdoing while shielded from political interference. This position was called a special prosecutor at first and later independent counsel. The law set criteria for an attorney general to request a three-judge panel to appoint such a prosecutor, who would be subject to the judges’ supervision and could not be fired by the president or his appointees.

While the Supreme Court upheld the arrangement as constitutional, critics said it permitted a prosecutor to run amok. Republicans learned to hate the arrangement during the Iran-contra investigation into the Reagan administration, and Democrats did during the Whitewater and Monica Lewinsky investigation into President Bill Clinton. When the law expired in 1999, Congress did not renew it.

Could there instead be a special counsel?

Yes, Mr. Boente could appoint one of these.

Special counsels are empowered to run an investigation with greater autonomy than a United States attorney normally enjoys. But they are still ultimately subject to the control of the attorney general — and the president — who can overrule their decisions or fire them. This position dates to 1999, when the Justice Department issued new regulations to create it after the independent counsel law expired.

The regulations say special counsels “shall not be subject to the day-to-day supervision of any official of the department” and generally decide on their own “whether and to what extent to inform or consult with the attorney general or others within the department about the conduct of his or her duties and responsibilities.”


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