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The difference between Richard Nixon and John Travolta, plus other things to know about Trump, Comey and special prosecutors

President Trump’s abrupt firing of former FBI chief James Comey has renewed calls for an outside cou
President Trump’s abrupt firing of FBI Director James B. Comey has renewed calls for an outside counsel to investigate Russian meddling in the 2016 campaign.
(Evan Vucci / Associated Press)

With his abrupt firing of former FBI Director James B. Comey, President Trump faces more strenuous demands that an independent counsel be appointed to investigate any possible collusion between his campaign and Russian agents working to undermine rival Hillary Clinton.

Critics assert that Trump’s move was an attempt to stymie the FBI’s probe and insist the only way to ensure a full, impartial investigation is to hand the matter to a special prosecutor with no ties, or obligations, to Trump or his administration.

The president and his surrogates have adamantly insisted the Trump campaign had nothing whatever to do with Russian meddling in the presidential race and efforts to find a connection are nothing more than partisan witch-hunting.

What makes a prosecutor special? Are they faster than a speeding bullet?

Stop it.

So what is it?

A special prosecutor, or independent counsel, enjoys broad investigative power with wider-ranging authority than a typical federal prosecutor.

The law calls for appointment of a special counsel if it is determined a criminal probe is warranted, the investigation “would present a conflict of interest” for the Justice Department and it would be “in the public interest” to place the matter in the hands of someone outside the administration.

The “special” simply means they’ve been selected to pursue a specific matter; a kind of one-off.

Who decides whether appointment of an outside counsel is merited?

The short answer is the U.S. attorney general.

And the longer answer?

That goes back to the 1970s-era Watergate scandal, which involved a break-in at the Democratic Party headquarters by operatives connected to President Nixon’s reelection campaign. (The headquarters was housed in the Watergate office complex alongside Washington’s Potomac River, establishing “–gate” as a scandal-denoting suffix ever since.)

After the myriad abuses of the Nixon administration, which led to his resignation, Congress passed a law creating an “independent counsel” with broad powers to investigate alleged wrongdoing. The attorney general or Congress could seek appointment of a special counsel, but the ultimate selection was left up to a panel of federal judges who also determined the prosecutor’s mandate.

So it’s up to the attorney general or Congress?

Stick with me here.

OK.

Not anymore. Members of both parties were frustrated with the actions of past special prosecutors, including, most notably, Kenneth Starr, whose investigation of President Clinton morphed from a look into a failed Arkansas real estate deal to a tawdry probe of his extramarital affair with White House intern Monica Lewinksy.

Lawmakers were concerned that the cost and free-ranging nature of previous investigations had gotten out of hand, so they allowed the independent counsel law to lapse. In its place is a system in which only the attorney general can appoint a special prosecutor, with their investigative scope limited to criminal activities.

In this instance, however, Atty. Gen. Jeff Sessions has recused himself, after failing to tell Congress during his confirmation hearing that he twice met during the campaign with Russia’s ambassador to the U.S. The decision, therefore, rests with the deputy attorney general, Rod Rosenstein.

Rosenstein wrote the memo that urged Trump to fire Comey.

So Congress has no say?

Not when it comes to an independent counsel. Lawmakers could vote to create a high-profile House-Senate committee to investigate Russian meddling and the Trump administration, but right now it’s mostly Democrats agitating for such a panel — though Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina are on board.

In the meantime, separate investigations are underway by the House and Senate intelligence committees. Graham, who leads a subcommittee with oversight of the FBI, is heading up a third probe.

You use “special prosecutor,” “independent counsel” and “special counsel” interchangeably.

That’s because they’re all the same. Some frown on the term “special prosecutor” because it has a kind of guilty-until-proven-innocent connotation.

I keep hearing about the “Saturday Night Massacre.” Is that the disco movie starring John Travolta?

No, that was “Saturday Night Fever.”

Oh.

The "Saturday Night Massacre" should not be confused with "Saturday Night Fever."
The "Saturday Night Massacre" should not be confused with "Saturday Night Fever." (Kobal Collection)

The “Saturday Night Massacre” occurred Oct. 20, 1973. As the coils of the Watergate scandal tightened around him, President Nixon sought to fire Archibald Cox, the special prosecutor appointed to investigate the June 1972 Watergate break-in and subsequent White House cover-up.

Nixon’s attorney general, Elliot Richardson, and Richardson’s chief deputy, William D. Ruckelshaus, both resigned rather than carry out Nixon’s order. Robert Bork, the solicitor general, did the deed, and his firing of Cox was one of the issues raised when his appointment to the U.S. Supreme Court, by President Reagan, was thwarted in the Democratic-run Senate.

“Saturday Night Fever” had the much better soundtrack.

Agreed.

But firing the special prosecutor. That was certainly Nixonian!

Hence, the abundant use of that adjective of late. But it also could be described as “Grant-like.”

Come again?

President Ulysses S. Grant, who presided over one of the most corrupt administrations in history, appointed the country’s first special prosecutor, Gen. John B. Henderson, in 1875. His charge was to take on the St. Louis Whiskey Ring and a kickback scheme involving taxes on distilleries in Missouri. When the probe crept too close to the White House, Grant fired Henderson and then acted to undercut the effectiveness of his replacement.

So much history! Is there precedent for Sessions’ recusal?

There is. Atty. Gen. John Ashcroft stepped aside in 2003 when the decision was made to appoint an outside counsel to probe the unmasking of CIA agent Valerie Plame during the debate over the Iraq war. Ashcroft had close ties to some of those who may have been involved in the disclosure to the syndicated columnist Robert Novak. Guess who made the call?

Do tell!

It was Ashcroft’s No. 2, Deputy Atty. Gen. James Comey.

Small world!

Indeed.

mark.barabak@latimes.com

@markzbarabak

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