Hello? Is there a Prosecutor in the House?

Our government has three parts: Executive Branch, Legislative Branch and Judicial Branch. They are separate and independent of one another. Our government also has a system of checks and balances by which each branch is held accountable for any violations of the U.S. Constitution – which is the governing document for the whole system. The Judicial Branch has the final say on what is or is not Constitutional. The Executive and Legislative Branches have the power to investigate, and the Executive Branch has the power to prosecute, claims that ultimately get decided by the Judicial Branch.

We have talked before about the legislative and the executive branches’ investigatory bodies. In Congress, either the house or senate can convene hearings on any topic, and conduct any fact-finding they wish. Remember the Select Committee of Presidential Campaign Activities – also known as the Watergate Committee — in 1972; or the Joint Committee to Investigate Covert Arms Transactions with Iran and the Nicaraguan Opposition in 1987? Those are examples of Congress using its investigative powers to hold the Executive Branch accountable for its actions.

In the current situation, either or both chamber could call for a select or special or independent or joint committee to investigate this Executive Branch’s activities.  Such a committee could — certainly should — include the power to subpoena the Executive Branch for any material that would aid in the investigation.  Off the top of my head, I’m thinking Trump’s full tax returns going back to at least 2008.  But I know that’s crazy talk.

In the Executive Branch, investigatory power rests with the Justice Department, which includes the FBI.  We don’t know much about any of those investigations, except for who is running them —  the head of the FBI is James Comey and the head of the Justice Department is Jeff Sessions.  Presumably those investigative bodies too would have the authority to subpoena documents from the White House that would aid in their investigations.  Presumably too, Trump’s tax returns would be of interest.  But again, crazy talk.

Whether either branch is doing adequate investigation into the myriad claims emerging from and in reaction to the Trump Administration, however, let’s consider the question of prosecution. Because that is where things get really interesting. In U.S. v. Nixon, the Supreme Court ruled that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” U.S. v. Nixon, 418 U.S. 683 (1974). No matter who does the investigating, therefore, the Executive Branch is the only one with the power to prosecute.

The highest ranked prosecutor in the land is the Attorney General (our friend, Jeff Sessions). Below the Attorney General is Deputy Attorney General (Dana Boente is acting Deputy A.G., since Trump fired Sally Yates for saying the Muslim ban was unconstitutional). Below the Deputy A.G. are the Solicitor General, who represents the government in the Supreme Court, and the Associate A.G., who oversees various agencies and programs and divisions of the Justice Department. Check out this handy chart. https://www.justice.gov/agencies/chart.

The folks who actually prosecute crimes for the Federal Government are the U.S. Attorneys. The President appoints a U.S. Attorney for each federal district in the country.  The U.S. Attorneys answer to the Attorney General, as the head of the Justice Department. According to the Justice Department web site, “The United States Attorney is the chief federal law enforcement officer in their district and is also involved in civil litigation where the United States is a party.” https://www.justice.gov/usao/about-offices-united-states-attorneys.

So we have investigative bodies who may or may not be doing their work to uncover the mess that has befallen our country. But regardless of what they uncover, these investigative bodies cannot bring a case against anyone in or connected to the Administration – or indeed anyone at all – unless someone in the Department of Justice assigns a U.S. Attorney to prosecute the matter.

That isn’t normally a problem because the Department of Justice has long operated independently from the White House, even though it is nominally part of the Executive Branch. Indeed, the Justice Department’s independence from the President is one of its hallmarks.  And one of the hallmarks of a functioning government. http://www.latimes.com/nation/nationnow/la-na-justice-department-white-house-20161123-story.html.

But it is a problem now.  Let’s take the Michael Flynn situation. The decision whether or not to pursue a case against Flynn — and ultimately to prosecute him for lying to the FBI, among other things — rests with the country’s chief prosecutor:  the Attorney General, Jeff Sessions.  Sessions himself is compromised in making that call — Sessions and Flynn campaigned for Trump together for months, and worked together during the transition. Sessions has, in fact, had to recuse himself from any investigations involving the Russian hacking. http://www.salon.com/2017/02/16/can-jeff-sessions-be-trusted-to-investigate-flynn-trump-and-the-russians-the-answer-should-be-obvious/

On top of that conflict of interest, though, the White House itself has weighed in on the question of whether to prosecute Flynn. Reports Vanity Fair, “Trump has made his views on the matter quite clear. During a press conference on Thursday, Trump defended Flynn as a ‘fine person’ and strongly suggested that he shouldn’t face prosecution. ‘What he did wasn’t wrong.'” http://www.vanityfair.com/news/2017/02/mike-flynn-fbi

But it’s not just the Flynn prosecution (or lack thereof).  As we all know by now, last Friday, Trump asked for the resignation of the 46 remaining Obama-appointed U.S. Attorneys, effective immediately. While bringing in your own people is certainly one of the perks of winning, the way in which this particular purge unfolded is unprecedented. The U.S. Attorneys were told on Friday afternoon to pack up their desks and turn in their keys by midnight. http://www.msnbc.com/rachel-maddow-show/trump-sparks-new-controversy-us-attorney-dismissals .

There was no time to close their cases, pass files on to successors, or otherwise make a smooth transition to new personnel — if there even are new personnel – which seems unlikely given that so many Justice Department jobs remain unfilled.  Indeed, the White House has not nominated a single replacement for the now empty posts. http://www.msnbc.com/rachel-maddow-show/trump-sparks-new-controversy-us-attorney-dismissals

The most high profile dismissal among the 46 is that of Preet Bharara, the U.S. Attorney for the Southern District of New York. His dismissal is particularly noteworthy for two reasons:  first, he was asked in November, first by Trump and then by Sessions, to stay on in his post.  He readily accepted. http://www.economist.com/blogs/democracyinamerica/2017/03/you-re-fired. So why the sudden about-face now?

The second reason his dismissal is noteworthy is his jurisdiction.  As chief prosecutor for the Southern District of New York, Bharara pursued Wall Street with a vengeance.  In fact, at the time of his firing, he was actively pursuing a case against Deutsche Bank, the largest known lender to Trump’s businesses and a firm that has worked extensively with Trump’s family.  Bharara was investigating the Bank over allegations that it had helped wealthy Russians get money out of Russia by converting rubles into Western currency.  http://www.pbs.org/newshour/rundown/u-s-attorney-bharara-says-fired-not-resigning/.

Not only that, the top Democrat on the House Judiciary Committee, Representative John Conyers (MI), suggests that Bharara could have been looking into “a range of potential improper activity emanating from Trump Tower and the Trump campaign, as well as entities with financial ties to the president or the Trump organisation.” http://www.pbs.org/newshour/rundown/u-s-attorney-bharara-says-fired-not-resigning/.

So let’s be clear:  the top prosecutor in the country has discretion to decide what cases to bring against whom. He has had to recuse himself from the Russia investigation because of his own conflicts of interest.  But even if his acting Deputy, Mr. Boente, decided to pursue the Flynn case, or any other aspects of the Russia-Trump connection, the Attorney General and President have dismissed the very attorneys who might be in a position to pursue and ultimately prosecute any claims against the Administration.

Remember Rachel Maddow’s warning that “it looks like we’re going to have to do this ourselves.”?http://www.msnbc.com/rachel-maddow-show#!#full-episodes. She was talking about doing the investigating to figure out what is happening to our country.  But it’s becoming pretty clear that even as we uncover more, leak by leak and page by page, our job will not be over any time soon.  Looks like we’re also going to have to figure out how to get these cases prosecuted.

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