What can and can't a special counsel do?

Tommy Tucker, WWL First News
Thursday, May 18th

Tommy talks to Jed Shugerman, Professor of Law at Fordham University, about the appointment of Robert Mueller as special counsel to oversee the Russia investigation.

00:10:34

Transcript - Not for consumer use. Robot overlords only. Will not be accurate.

A text comes in and says. Tommy I'm not accusing you of fake news. When I'm saying is for the last eight years you didn't say anything bad about the present and to appeal to a certain group of people. Certain type of people known for the last eight years in an ever present at that was tweeting in spurts. Brit Hume. The senior analyst at Fox News whom I respect greatly. Set of Donald Trump's tweet a half an hour ago with all of the illegal exit visit tweet with all of the illegal acts that took place in the Clinton Campaign. And Obama administration there was never a special counsel appointed. And Brit tune sky men are meant was I wonder if he has any idea how pet you lent this sounds. That's Brit Hume with fox Jay Sugarman joins us right now professor of law. At Fordham University the alma mater of believe it's been some Barney is an urgent. I think it is but they were taken a time when this what is the purview of this special counsel. Well the disc special counsel is he's usually given a specific jurisdiction under the under the statute in the code and up by the Department of Justice chip will be tasked with looking at certain things but. It's not such a stretch to remember back in it was a different positions under the it in the Clinton White House to get from the white water. Investigation. So Monica Lewinsky. It's the kind of saying that you can start with a certain. Jurisdiction and it it's a different guy council independent counsel different from. The special counsel but once you're giving criminal jurisdiction or civil jurisdiction over particular. Percent of those questions they can grow pretty quickly. I don't mean to wander wade deep in the weeds here on Imus coaches now a special. Councils. Still exists a special prosecutor does not believe their right to grow if he'd just explain if you would. The difference their body gets in terms right. So what. What the statutes and code they currently exists they refer to special counsel that wrong because this special counsel has both. Criminal jurisdiction and all that can have civil jurisdiction meaning that they can. Investigate crimes and also civil wrongdoing. So that it it's it's. To call a special counsel means that you're talking about them in the can be broader than just crime. Who can fire a special counsel. This is a great question that code that the DOJ the department just has put together. Says that only get attorney general. Can fire special counsel and in this in the case where if he were accused. Attorney general the codes as the acting attorney general also in this case. The acting attorney general in this case is grosans time. And now sessions. Carl for the investigator who called or appointed independent. Exactly who wrote and I appointed. Muller and under it. Do current structure would say that all on the road in Stockton could fight that could fire Muller. Now it's possible concessions to decide on accuse themselves. At which point he could fire. The Muller but then he would be pretty good he would be implicating himself in obstruction of justice because he is. A witness to protect perhaps even the target of this investigation. There is a question of whether trumpet claim that he could fire Muller. But that we'd be getting back into obstruction of justice in the same kind of obstruction of justice claimed. That's pretty strong already for what Hal is fired call me. At that point you get an in the Nixon territory and a. I think we're already in Nixon's territory. You might remember back in Watergate. They talked about that the search for a smoking gun and that's smoking gun would be enough to impeach. Well the smoking gun was that tape recording. As Nixon talking about trying to prevent the FBI from investigating. And that was the recording that they had for Nixon we already have the parallel to that what we we call me memo that we that we that has been red. No one's red. The economy's mammoth wave that memo the memo was released to the press. With similar read it on the phone to journalists so if if we can assume that that memo actually exists. That memo is already the deal of the smoking gun parallel. To what they're looking for Watergate and it puts together to the company spent in that. And professor at Mina. To tie yelled with this and get a lot of text though people are still confused about a special counsel vs a special prosecutor vs an independent prosecutor. Great that Cuba and take a step back and just think that the independent counsel. Was beat from the from after Watergate. Through. Clinton years that was created by a special statute passed by congress. That congress had to reauthorize and they did they never operatives and that's gone to the independent counsel. And congress has not recreated so that's the so under the current statutes. We have these special counsel provision. And and the Department of Justice. Has has the process for how an attorney general ward at. Acting attorney general can appoint a quote special counsel. Unquote so that's special counsel can have criminal jurisdiction in which case that's special counsel can operate like a special prosecutor. But the formal name is the special counsel. Special. Prosecutor goes one. When the special counsel shipped rolls into prosecuting. Dead in function may become a special prosecutor. But the formal name we're gonna go buy it for Mahler until he actually brings an indictment or start prosecuting for a crime. Dubious special counts. The broader world debris as he can eaten too he can do lots of things. In investigations both criminal and in terms of civil. And in independent. Prosecutors. No longer. That's what I that's what Ken Starr was during white Wallace he is I get it right but that's defunct if they don't would morph into the independent counsel would morph into the independent prosecutors in that loss on data on existing. But but the but the special counsel can function like a special prosecutor. Once he shipped it once he's decide the crimes have been committed to recognize you can have a special counsel investigate and then if you find no. No formal crimes. He can still make recommendations. Or he can still reveal what these ground and congress and this is really important. Impeachment is not limited. To. Crimes on the books when the country the constitution says that an officer can be impeached for quote high crimes and misdemeanors. There's a misperception that high crimes and misdemeanors must be things that are crimes on the books. Comment it's always been thought of as a political. Investigation. English times to the day. So it's up to congress to decide what it used to be an abuse of power or high crime. Do more to play a role they are by investigating you can reveal the operas look it's fine. Obstruction of justice on the books but I did find abuse of power or account to cover up. And congress to say you know what that cover up is strong enough for us to bring articles of impeachment. So there it's it's important to see that. Mueller is well could be much broader than just being a prosecutor he could be the investigator. That congress uses. When it wouldn't impeaches and then perhaps convict. So. When it comes to subpoena powers. Can. This independent. Council. Subpoena the president none on those spamming industry and your counsel in the exit voted to subpoena the press. Well if you subpoenaed documents and you can depose the president at that rate. We went to a similar thing came up with Bill Clinton he was deposed. By Kenneth Starr the same thing would happen here could be by video. It could be written deposition that go back for the could be alive deposition but a deposition means that they that the two person being interviewed under coach. And that's enormous because you know similar to lie to the public and it's not a crime and it may not even be something that we impeach you expect Oprah are. Our politicians to libelous. But if you're in the deposition your under oath and that's what got Bill Clinton impeached. What he was under oath. Being interviewed about Monica were deposed about Monica Lewinsky Q he arguably lies and that became obstruction of justice this is the real danger zone now. I mean I think that you can make a strong argument that he that trump already obstructed justice. From what we know why he's fired economy. But as we keep at that keeps unfolding with more depositions and more subpoenas of documents. I'm actually opens up the door all kinds of investigations of all kinds of people. Like a tree almost branching off here and recording music. Grow quick professor from religion gone in a lot of tanks about Pia from people saying. But what about calmly waiting so long interns in does that factor in this and all. Will he turn that really really quickly once he could I above while he was at BI director we would have been inappropriate for him. To be revealing to the public is content of the conversations while he was FBI director. It really didn't rule changes once he gets fired. This was the strategic mistake affront to mute everyone knew from Kobe's role. During the bush White House where he was. Did but people should read about what commune Mueller were involved west's. In the bush years we know that he took notes so. The issue is that it would've been overstepping its role to go public with his conversations before he was fired but once she was fired. And trump with making claims about only doing in the Cuba and Kobe was also being asked to testify before congress. It will then shift to a more public function. It's it's appropriate for him to be. Talking publicly. About these public issues. Sosa to strategically. Not a good move to fire combing. There would hit it it was it was probably did the it was an enormous strategic mistake because that it's actually the crime of obstruction of justice given what we've known now but it also opens himself up. Typically to reveal everything about that obstruction of justice. And perhaps far more that he goes. Thank you so I appreciate your time earlier welcome complicated things you made simply ought to be a teacher. You bet.
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