Democracy 21 Tells Acting AG for Russia Investigation that DOJ Regulations Require Independent Special Counsel

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In a letter sent today to Acting Deputy Attorney General Dana Boente, Democracy 21 President Fred Wertheimer called on Boente “to exercise the authority provided under Justice Department regulations to appoint an independent Special Counsel to assume authority over and lead the Russia investigation and related matters.”

Attorney General Sessions designated Boente yesterday to serve as Acting Attorney General for purposes of leading the Russia investigation.

Sessions recused himself from the matter following the disclosure in a Washington Post article that he had met twice during the presidential campaign period with the Russian Ambassador to the United States. Attorney General Sessions had previously testified at his Senate confirmation hearings that he had no communications with Russians during the presidential campaign period.

According to the letter to Boente:

The fact that Attorney General Sessions met with the Russian Ambassador to the United States during the 2016 campaign means that Sessions himself is a potential subject of the FBI investigation currently taking place.

Under these circumstances, neither you, serving as both Acting Deputy Attorney General and Acting Attorney General in this matter, nor your successor as Deputy Attorney General once that nominee is confirmed, nor any other official in the Justice Department, can credibly conduct and lead an investigation of this matter.  The matter now includes a potential investigation of Attorney General Sessions who otherwise continues to head the Justice Department and who you and all other employees continue to work for on other matters.

The letter continued:

Furthermore, the scope of this investigation potentially also involves President Trump, his presidential campaign staff, other individuals who supported Trump in the presidential campaign, and individuals who worked on his transition or who are working in the White House.

It “would present a conflict of interest” for political appointees of President Trump serving in the Justice Department, or those who work for them, to be involved in an investigation of this scope.

According to the letter:

Justice Department regulations, and the need for a publicly credible investigation of Russia’s interference in the 2016 presidential election and related matters, require you to appoint an independent Special Counsel to conduct and lead this investigation.

The letter stated that the matters Attorney General Sessions’ recusal must cover and that the Special Counsel should be authorized to investigate include:

i) any interactions between President Donald Trump, his campaign staff or other individuals supporting his campaign, and Russian actors during Trump’s 2016 presidential campaign, (ii) any Russian interference with the 2016 presidential election, (iii) the interactions between former National Security Adviser Michael Flynn and Russian actors, (iv) the interactions between Attorney General Sessions and the Russian Ambassador to the United States, and (v) any leaks concerning any of these matters.

The letter stated:

To put it in the terms of the Justice Department regulation [28 C.F.R. § 600.1], it would constitute “extraordinary circumstances” for officials of the Justice Department to conduct and lead an investigation and determine any appropriate action to be taken regarding the Attorney General for whom they work.

It also “would present a conflict of interest” for Justice Department officials to conduct and lead an investigation and determine appropriate action to be taken regarding the individuals and matters involved in this case.

In the context of the regulations, it “would be in the public interest to appoint an outside Special Counsel” to assume responsibility for these matters. The language of the regulation states that an independent Special Counsel “will” be appointed in circumstances such as those involved here and thus requires you to appoint an independent Special Counsel.

The letter concluded:

The integrity and credibility of the Justice Department is at stake in these matters.

The Justice Department regulations, 28 U.S.C. § 600.1, require that you appoint an independent Special Counsel to conduct and lead the investigation of the matters described above and to make determinations regarding any actions that should be taken here. 

Democracy 21 urges you to promptly appoint an independent Special Counsel for these matters.