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What Is a Special Prosecutor? How Does It Relate to Recusal?

Criminal prosecutors are generally assigned by jurisdiction -- county, state, and federal. The U.S. Attorney General is the nation's top prosecutor. But newly-appointed Attorney General Jeff Sessions has found himself in a bit of a political and legal bind.

It was revealed this week that Sessions had two meetings with the Russian ambassador last year, but when asked about such contact during his confirmation hearings, Sessions said under oath, "I did not have communications with the Russians." Amid calls for an investigation into President Trump's administration and the Russian government, Sessions announced yesterday he has recused himself from that investigation, leaving the door open for the appointment of a special prosecutor. So what are special prosecutors, and what's next for the Trump/Russia investigation?

Special Prosecutors

Generally, a special prosecutor is brought in cases where there is a conflict of interest, or the assigned prosecutor's impartiality has been called into question. This has occurred in recent investigations into police shootings, in-custody deaths, and other high-profile cases, where local or state prosecutors may have too close of a working relationship with the officers or police departments to appear neutral in their investigation and prosecution of the case.

Special prosecutors have also been used in the political realm. Archibald Cox was a former law professor and solicitor general under President John F. Kennedy when he was called in to be a special prosecutor in the Watergate scandal. Cox was fired by then-President Richard M. Nixon for refusing to cease his investigation into the president.

After that, Congress created the United States Office of the Independent Counsel, an independent prosecutor distinct from the Attorney General and the Department of Justice. It was from that office that former Attorney General Janet Reno assigned Ken Starr to investigate allegations of Bill Clinton's misconduct as president.

Recusal and Reassignment

Following Sessions's recusal from the Russia investigation, the decision to appoint a special prosecutor would rest with acting deputy attorney general Dana Boente. And three conditions must be met to appoint of a special prosecutor:

  1. The attorney general (or acting attorney general) must determine that "criminal investigation of a person or matter is warranted";
  2. The investigation by the U.S. Attorney's office or Justice Department "would present a conflict of interest for the department or other extraordinary circumstances"; and
  3. "[I]t would be in the public interest to appoint an outside special counsel to assume responsibility for the matter."

Calls for a special prosecutor in Sessions's case have already come from Capitol Hill. Senate Minority Leader Chuck Schumer demanded swift action yesterday:

"If the Justice Department drags its feet and refuses to appoint a special prosecutor or select someone with insufficient independence, there is another route. We will then urge (Senate Majority Leader Mitch McConnell) and (House Speaker Paul Ryan) to work with Democrats and create a new and improved version of the independent counsel law, which would give a three-judge panel the authority to appoint an independent counsel."

Whether that appointment will take place, and especially who will be appointed, remains to be seen.

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