Jed Shugerman posted an entry on his blog about the option that Attorney General Loretta Lynch has to appoint a special prosecutor to investigate potential violations of the Emoluments Clause of the Constitution under the Trump administration.
In yesterday’s press conference, Trump was asked, “Can you stand here today once and for all and say that no one connected to you or your campaign had any contact with Russia leading up to or during the presidential campaign?” He evaded this question and then abruptly ended the press conference. Trump also did not present a plan that remotely addresses his unprecedented degree of financial conflicts of interest, which overlap with the problem of Russian influence and kompromat. Some have claimed that President Trump will be in violation of the Constitution’s Emoluments clause (see below).
So what are the next steps?
- We can hope that the Republican Congress will investigate. I am optimistic that Senators John McCain, Lindsey Graham, and Marco Rubio will take steps in that direction. It is unclear how far they would be willing to go.
- We can hope that FBI Director Jim Comey might investigate fully, but he serves under the Attorney General, and we should have no faith in Sessions as an independent, unconflicted law enforcement official.
- There is one more move to consider carefully: Obama’s Attorney General Loretta Lynch can appoint a special prosecutor with jurisdiction over the illegal contacts or conspiracy with Russian officials. A special prosecutor’s term does not end with an administration. It is open-ended, so the special prosecutor would continue to serve during the Trump administration… unless the new Attorney General fired him or her, only for “good cause.
I am not necessarily endorsing this unprecedented path. There is a good argument to be made that it is too soon to move so swiftly, that the intelligence materials are too questionable and too unsubstantiated. Lynch, a Democrat, appointing a special prosecutor could backfire as an overreach, perceived as partisan. Even if Lynch appoints a Republican-affiliated lawyer, maybe anything an “Obama” prosecutor finds will not be viewed as legitimate or reliable. Perhaps we should let the intelligence community and journalists do more of their jobs first, and then we should rely on options 1 (Congress) and 2 (Comey). Perhaps Trump could benefit by having an independent investigation of the intelligence agencies for signs of their illegal leaking or even manufacturing claims.
But I am nevertheless going to explain how this process would work as a legal matter, because there are only eight days left to consider it.
