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Democrats want a special counsel after Comey firing; who decides and who has firing authority?

Many Democrats are calling for the appointment of a special counsel to investigate Russian interference in U.S. elections after President Donald Trump’s decision Tuesday to fire FBI Director James Comey.





Unless Congress acts, the decision would fall to Deputy Attorney General Rod Rosenstein, report the New York Times, LawNewz and Business Insider.

Comey reportedly sought more money for the Russia probe in a meeting with Rosenstein last week, report the Washington Post and the New York Times. Rosenstein also wrote the memo used to justify Comey’s firing. Both stories are based on anonymous sources.

Justice Department spokeswoman Sarah Isgur Flores denied to the Times that Comey had sought more funds for the Russia probe.

Among the Democrats calling for appointment of a special counsel is Senate Minority Leader Charles Schumer, D-N.Y, the Washington Post reports. “If there was ever a time when circumstances warranted a special prosecutor, it is right now,” Schumer said Wednesday morning.

After a closed-door caucus meeting Wednesday, Schumer said Democrats agreed the “highest serving career civil servant” in the Justice Department should appoint the special prosecutor rather than Rosenstein, the Hill reported. Comey should also meet with the Senate, Schumer said, and Sessions and Rosenstein should separately meet with the Senate.

After the expiration of the independent counsel law in 1999, the decision on whether to appoint a special counsel falls to the attorney general. Because Attorney General Jeff Sessions has recused himself from investigations related to the Trump presidential campaign, any decision would be made by Rosenstein.

Federal law calls for the appointment of a special counsel when a criminal investigation of a person or matter is warranted, the prosecution would present a conflict of interest for the Justice Department or other extraordinary circumstances are present, and the appointment would be in the public interest.

The prior independent counsel law expired after Kenneth Starr’s investigation into Bill Clinton’s Whitewater land deal and his statements about his relationship with Monica Lewinsky. Under the old law, the attorney general would ask a three-judge panel to appoint a special prosecutor, who would be supervised by the panel and could not be fired by the administration.

After expiration of the law, the Justice Department adopted regulations regarding special counsels, according to the New York Times. Such counsels are not subject to day-to-day supervision of anyone in the department, and they generally decide how much information to disclose to department officials.

But the special counsel could still be fired by Rosenstein or Trump.

Congress could pass an independent counsel law setting up a process for the appointment of a special counsel. And it could create a special body to investigate that could take the place of, or add to, current investigations by congressional committees.

U.S. Rep. Justin Amash, R-Mich., has said he is reviewing legislation that would establish such a commission. And U.S. Sen. John McCain, R-Ariz., is calling for creation of a special select committee to investigate.

Updated at 11:50 a.m. to include information on Comey’s request for additional funds. Updated at 2:35 p.m. to include additional Schumer comments.