Should a Special Counsel Be Appointed Whenever the President, Vice President, or Their Families is Under Investigation? (H.R. 47)

What is H.R. 47?

(Updated June 18, 2020)

This bill — known as the TRUMP Special Counsel Act — would require the Attorney General (AG) to appoint a special counsel when the investigation or prosecution of a person or matter would present a conflict of interest for the Dept. of Justice (DOJ), or when other extraordinary circumstances exist. “Extraordinary circumstances” would exist in any criminal investigation of the president or vice president, or their spouses or children. Such circumstances would also exist in any criminal investigation involving the activities of agents or entities under the control of a foreign state acting in coordination with agents associated with the president or vice president.

Once appointed, a special counsel’s jurisdiction would be established by the AG, who would be responsible for including a specific factual statement of the matter for the special counsel to investigate. The special counsel’s jurisdiction would include the authority to investigate and prosecute federal crimes committed with the intent to interfere with the investigation. To carry out their job, the special counsel would be able to exercise, within the scope of their jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any U.S. Attorney.

The special counsel could request additional, appropriate DOJ employees to assist their investigation. If necessary, the special counsel could also request the hiring or assignment of additional personnel from outside DOJ.

At the conclusion of their work, the special counsel would be required to provide the AG with a confidential report explaining prosecution or declination decisions.

The bill’s full title is the Trusted, Reliable, Unquestioned Method of Procedure for Special Counsel Appointment, Limitations, and Powers Act of 2017.

Argument in favor

When presidents, vice presidents, or their families come under legal scrutiny, these high-profile, high-stakes investigations need to be kept independent of undue influence. Appointing special counsels in these cases is the best way to ensure their integrity and it shouldn’t be up to the DOJ to appoint one.

Argument opposed

This bill is a meaningless piece of political theater that won’t go anywhere. It’s also unnecessary, as the AG already has the power to appoint special counsels for executive branch investigations, in extraordinary circumstances, and in cases when it’d be in the public interest to have an outside counsel.

Impact

DOJ; AG; appointment of a special counsel; and powers of a special counsel.

Cost of H.R. 47

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Sheila Jackson Lee (D-TX) reintroduced this bill from the 115th Congress to uphold the rule of law during the Trump administration. In a statement on Facebook after introducing this bill last Congress, Rep. Jackson Lee wrote:

“The onslaught of scandals surrounding the Trump presidency have led our democracy to a crossing point. Will we uphold the rule of law or allow for the continued obstruction of justice by a chief executive who brazenly abuses his power? Americans need to know the truth about Russia's interference in our election and the collusion of Russian agents and Trump campaign officials. But following the president's abrupt dismissal of FBI Director James Comey and revelations Trump pressured Comey to drop the Flynn investigation, it is abundantly clear that an outside independent prosecutor is required to find the facts… It is my firm belief that only through a Special Counsel will the American people be able to trust the outcome of such a critically important investigation.”

The Houston Press’ Dianna Wray criticized this bill as a “meaningless gesture” that “plays well while accomplishing nothing.” Wray added that this bill is a “blatant move to try and jump on the anti-Trump bandwagon.”

This bill has had no cosponsors in either Congress it's been introduced in. 

Of Note: Rep. Jackson Lee introduced this bill in response to President Trump’s dismissal of FBI Director James Comey and revelations that Trump pressured Comey to drop the investigation into Lt. Gen. Michael Flynn.

Rep. Jackson Lee has introduced other legislation protecting the special counsel. In August 2017, three months after introducing this bill, she introduced the Special Counsel Independence Protection Act to limit the removal of a special counsel.

Independent, or special, counsels are appointed to investigate executive branch officials. The existing federal code empowers the AG to determine when a special counsel is necessary. According to the Code of Federal Regulations, a special counsel shall be appointed when an investigation “would present a conflict of interest for the DOJ,” in “other extraordinary circumstances,” and when it “would be in the public interest” to have an outside counsel.

Media:

• Sponsoring Rep. Sheila Jackson Lee Facebook Post (115th Congress)

• Houston Press

• Countable - Special Counsel Independence Protection Act (Related Bill)