Concerns about independence grow after statement by Mitch McConnell suggests only option to lead inquiry is special counsel – in this case, the man who wrote the letter leading to Comey’s dismissal

Following the Trump administration’s shock decision to sack FBI director James Comey on Tuesday, demands for the appointment of a special prosecutor to lead an investigation into Russia’s interference in the 2016 election have intensified.



“If we don’t get a special prosecutor, every American will rightfully suspect that the decision to fire #Comey was part of a cover-up,” Senate minority leader Chuck Schumer, a Democrat, tweeted shortly after Comey was fired.

James Comey fired 'days after requesting Russia inquiry resources' – live Read more

But options for placing an independent official in charge of such an investigation are limited, and narrowed even further on Wednesday morning after the Senate majority leader, Mitch McConnell, made clear he did not support Schumer’s demands.

McConnell told the Senate that such an appointment would “only serve to impede the current work being done” by congressional committees and law enforcement already investigating, probably taking two of three possible options off the table. Congress could have passed legislation to appoint an independent prosecutor to a new investigation, or it could have created a special congressional committee to start up a new probe. After McConnell’s remarks, both seem unlikely.

What seems like the only remaining option – the appointment of a special counsel – now lies solely in the hands of the US Department of Justice (DoJ) and the same man, deputy attorney general Rod Rosenstein, who authored the letter that led to Comey’s sacking in the first place.

After the Watergate scandal, legislation governing the appointment of independent counsel was passed which allowed the attorney general to request a panel of three judges to appoint a special counsel, and then allowed that special counsel the ability to continue any investigation until they deemed it complete. This was introduced in part to prevent a future president from sacking a special prosecutor, as Richard Nixon had done in 1973.

But in 1999 this legislation was allowed to lapse by the Clinton administration.

The system now is far less independent. Any federal special counsel is appointed by the attorney general, who then retains the ability to decide whether criminal charges are pursued after the investigation concludes. Given that the attorney general, Jeff Sessions, has already recused himself from any investigations into Russia’s involvement in the 2016 election, the official who would be placed in charge of appointing such a special prosecutor would be Rosenstein.

While Democrats have started to demand Rosenstein be removed from such duties, due to his involvement in Comey’s sacking, career DoJ officials including former acting attorney general Sally Yates had earlier expressed confidence in his impartiality.

Former assistant attorney general Laurie Robinson also expressed confidence in Rosenstein’s judgement in an interview with the Guardian on Wednesday.

“My guess is that he has been a bit surprised by the tremendous reaction, as the White House apparently was, to Comey’s firing and that he is going to see that they’re going to have to take strong steps to ensure the aggressive follow-through on this investigation,” said Robinson, who served under Bill Clinton and Barack Obama.

Rod Rosenstein: the man who wrote the memo that sealed James Comey's fate Read more

She added that it would be logical for Rosenstein to appoint a special prosecutor under these exceptional circumstances for one specific reason: “The appearance of justice is a very important factor, and the appearance of justice would tend to speak in favour of appointing a special counsel.”

Nonetheless, even before Trump moved to sack Comey, the investigation already being run by the DoJ appeared to be taking steps toward prosecutions.

Late on Tuesday, CNN reported that federal prosecutors had issued grand jury subpoenas to associates of Michael Flynn, Trump’s disgraced former national security adviser, seeking business records. Grand juries examine potential criminal misconduct and determine whether charges should be brought, and operate in secrecy.

The subpoenas were reportedly issued by the US attorney’s office for the eastern district of Virginia. Comey told Congress last week that the FBI was coordinating its Trump-Russia inquiries with that US attorney’s office and the national security division at DoJ headquarters.

Unusually, these offices are led by the same person: Dana Boente, who is both the acting assistant US attorney general for national security and the US attorney for Virginia’s eastern district.

Boente was given the national security role after briefly serving as Trump’s acting US attorney general between the firing of Sally Yates and the Senate’s confirmation of Sessions. A spokesman confirmed on Wednesday that he also remains the US attorney in eastern Virginia.