What the U.S. Intelligence Community has concluded was a covert Russian operation targeting the U.S. presidential election to help President Trump win was an extraordinary assault on our democracy. Yet Trump’s repeated dismissal of evidence pointing to Russia’s responsibility is even more extraordinary.  There are serious questions whether his administration can conduct an impartial and independent investigation into Russia’s actions or whether a Special Counsel is now needed to conduct the ongoing criminal investigation into Russia’s influence operation and possible ties between Russia and individuals in the Trump campaign and administration.

The recent confirmation of one of Trump’s earliest and closest campaign advisers, former Senator Jeff Sessions, as attorney general, provides no assurance that the Justice Department will exercise the necessary independence from the White House to carry out the investigation.  The Senate will next consider the nominee for Deputy Attorney General, Rod J. Rosenstein.  He should be asked to seriously consider the necessity of appointing a Special Counsel if confirmed.  Indeed, when Patrick Fitzgerald was appointed Special Counsel to investigate the leak of a CIA agent’s name, then-Attorney General John Ashcroft recused himself because of close ties to the White House, and then Deputy Attorney General James Comey appointed the Special Counsel.

While there are various ongoing investigations into the Russian operation and its fallout, (summarized here on Lawfare) none of them, including any FBI investigation, are a substitute for a complete and independent investigation into possible criminal activity connected with these Russian operations against the United States.

Moreover, there is a strong case to be made that the Justice Department is facing the quintessential situation where an independent counsel is needed:  the Department is charged with investigating members of the administration, potentially including the President himself, of which the Department is a part.  It is possible that the President could be required to answer questions during the investigation; at a minimum it is likely that personal financial and other information from the President will be required.

With this in mind, it’s worth looking at Department of Justice regulations, 28 CFR 600.1, which provide that the Attorney General:

“will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and,

(a) That investigation or prosecution of that person or matter by a United States

Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an

outside Special Counsel to assume responsibility for the matter.”

There is a strong case to be made that criminal investigation of these matters by the Department of Justice under Attorney General Sessions both presents a conflict of interest and constitutes extraordinary circumstances, and that appointment of an outside Special Counsel is in the public interest. 

Let’s summarize some of the key events necessitating a full criminal investigation and which should be considered in examining the necessity for appointment of a Special Counsel.

  1. The Intelligence Community has concluded that Russia actively interfered in the U.S. election.

The US Intelligence Community has concluded that Russian President Vladimir Putin ordered an influence operation targeting the presidential election and that he and the Russian government acted to harm Secretary Clinton’s campaign and help President Trump win.  The Intelligence Community Assessment on the matter states that Russian President Putin “ordered an influence campaign in 2016 aimed at the US presidential election. . . . to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency.” The Intelligence Community also assessed that “Putin and the Russian Government developed a clear preference for President- elect Trump.”

  1. There are substantial allegations concerning the possible involvement of Americans in these Russian activities during the election campaign.

There are extensive press reports that individuals associated with the Trump campaign may have colluded with Russia.  During the campaign, then candidate Trump fired his campaign manager after press stories linking the manager with Russian interests.  There are also extensive press reports that individuals associated with the campaign are being investigated by the FBI, and at least one of those individuals served with then-Senator Sessions as a foreign policy adviser to the campaign.

These allegations are serious enough that the Senate and House Intelligence Committees investigations into the Russian operation specifically included a review of “any intelligence regarding links between Russia and individuals associated with political campaigns,”  even before National Security Adviser Michael Flynn was fired.

  1. There is evidence of collusion between the Trump administration and Russia concerning U.S. sanctions against Russia for its interference in the election. 

When President Obama imposed sanctions on Russia in December 2016 for its election interference, Michael Flynn, then in line to become President-elect’s National Security Adviser, discussed those sanctions in intercepted phone calls with the Russian ambassador on the day the sanctions were imposed.  Senior US officials reportedly interpreted Flynn’s communications as a “signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration.”  After Flynn’s conversations, Russia, surprisingly, took no action in response to Obama’s imposition of sanctions.   Trump praised Russia’s response.

When Trump administration officials were asked about the conversations, they initially denied that Mr. Flynn discussed the sanctions.  Senior government officials privy to the intercepts of the conversations, however, were so worried that Flynn would be subject to blackmail by the Russians, they repeatedly tried to warn Trump officials regarding their concerns.  The acting Attorney General privately warned the Trump White House in late January.  On Feb. 8-9, nine senior current and former officials told the press that Flynn had discussed sanctions.  Only after those press reports did Trump ask for Flynn’s resignation.

It is also notable that Flynn had unusually close associations with Russia after leaving government service as Director of the Defense Intelligence Agency.   In 2015, he gave a paid speech at the anniversary dinner for the Russian government controlled RT television at which he sat next to President Putin.  The Intelligence Community named RT as one of the Russian government organs involved in the election interference operation.

  1. President Trump’s actions have raised substantial suspicions concerning his potential ties to Russia.

Much is still unknown about President Trump’s knowledge of the conversations between Flynn and the Russian ambassador about the sanctions imposed on Russia.  But Trump’s statements and actions during the campaign and the first month of his presidency have evidenced a surprising defense of President Putin and Russian policies at odds with the previous policy positions of the Republican party.

Trump did not condemn Russia’s actions interfering in the US election.  He did not call for a full investigation or promise consequences for Russia or any American who may have been involved.  To the contrary, Mr. Trump repeatedly denied Russian involvement and tried to deflect criticism of Russia.  Even after public statements from U.S. government officials and after receiving a full intelligence briefing, Trump did not condemn the Russian operation, but instead attacked the integrity of the Intelligence Community and the press reporting, while belittling the significance of the attack.

During the campaign, Trump made numerous statements supporting the Russian operation. He called for the Russians to steal and release more of Hillary Clinton’s emails, frequently talked about the content of the emails stolen by the Russians, and blamed the Democratic National Committee and other victims for being hacked by the Russians.

Trump has repeatedly praised and defended Putin, while denigrating the conclusions of the Intelligence Community, and supporting changes in U.S. foreign policy long sought by Russia but inconsistent with Republican party positions.

Finally, Trump has refused to release an accounting of his financial interests with Russia or any other entity, including any indebtedness, while insisting on maintaining ownership of his non-public businesses.

  1. The FBI and its Director are also under a cloud regarding their activities during the election.

There are reports of counterintelligence investigations underway, presumably by the FBI.  But the existence of such investigations is not sufficient grounds to determine that no special counsel is needed because questions have also been raised about the impartiality of the FBI Director and the Bureau which suggest the existence of a conflict.  The Department of Justice Inspector General has announced that he is conducting an investigation into FBI Director James Comey’s public statements during the election campaign regarding the FBI’s investigation into Hillary Clinton and her aides stemming from her use of a private email server while Secretary of State.  The Inspector General will examine allegations that Director Comey violated long-standing Justice Department rules and procedures limiting public statements on investigations, especially close to an election.   (Trump cited the FBI Director’s October letter numerous times in the last week before the election.)

In addition, there have been at least two news reports apparently leaked by the FBI, which appeared to be calculated to be helpful to the Trump campaign and transition.  The first, which appeared 3 days after Director Comey’s October letter about Secretary Clinton’s emails reported that the FBI had been investigating connections between the Trump campaign and Russia and found no wrongdoing.  The second, which appeared during the contentious consideration of Senator Session’s nomination, reported that the FBI had reviewed the December telephone calls between Mr. Flynn and the Russian ambassador and found nothing, a report which now appears to be false.

In light of these circumstances, an independent prosecutor needs to review the role of the Director and the FBI in ongoing investigations.

  1. Attorney General Sessions’  key role in the Trump campaign, and his aide’s service as  a key advisor in the White House also raise the issue of the existence of a conflict. 

Then Senator Sessions was the first senator to endorse then candidate Trump and was an official surrogate for the Trump campaign through the primary and general election.  At a post-election celebration rally with Trump, Senator Sessions as Attorney General-designate said he viewed his appointment as Attorney General as an “opportunity to participate in a movement” to advance the President’s agenda.   President Trump’s chief Strategist, Steve Bannon, described him as “the fiercest, most dedicated and most loyal promoter in Congress of Trump’s agenda, and [he] played a critical role as the clearinghouse for policy and philosophy to undergird the implementation of that agenda.”   During the campaign, Sessions headed the Foreign Policy advisors committee, which included one of the individuals whose ties to Russia, when reported by the press, led to his departure from the campaign.   Apparently at Sessions’ suggestion, his former staffer, Stephen Miller, joined the campaign and now  serves as a key White House aide.

In sum, it is hard to imagine a case for concluding that these circumstances do not present both a conflict of interest and extraordinary circumstances.  These questions about the Trump administration also undermine public trust in the legitimacy of the government and democratic institutions and thus the public interest would be served by an outside independent and impartial Special Counsel conducting the investigation.  The administration itself should welcome such an investigation as a way to address the concerns of the public.

To date, however, Senator Sessions has refused to promise to recuse himself.

Under all these circumstances, it would seem that the Deputy Attorney General has the responsibility to seriously consider the necessity of a Special Counsel, or at a minimum, the recusal of Attorney General Sessions and assuming responsibility for the investigation himself.

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