ABC News(WASHINGTON) — Federal law may prevent Donald Trump from fulfilling a big promise he made at last night’s debate, according to former U.S. Justice Department chiefs from both political parties.
“If I win, I am going to instruct my attorney general to get a special prosecutor to look into [Hillary Clinton],” the Republican nominee vowed, citing Clinton’s use of a private email server as secretary of state. “We’re going to have a special prosecutor.”
But former attorneys general under Republican and Democratic administrations said presidents don’t get to decide on the appointment of a special prosecutor.
“I don’t conceive of that as something that’s in the authority of the president,” said Michael Mukasey, who was attorney general under President George W. Bush and has been an outspoken critic of Clinton for her use of the private email server.
Mukasey and other former Justice Department heads said the president can request a special investigator be named, but it’s up to the attorney general whether to actually appoint one.
Federal law states: “The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted.”
Mukasey told ABC News, “The president can say what they want to happen, but the attorney general’s proper response would be, ‘That’s interesting, I’ll take a look. But I decide that, you don’t.'”
“The president can [stomp] his Buster Browns on the sidewalk all he wants, but he doesn’t have the authority to make a decision,” the former attorney general said.
Mukasey noted that it takes an attorney general “with a spine” to make the right decision, especially considering that the president has the power to fire the attorney general.
Though the attorney general serves at the pleasure of the president, the head of the Justice Department is supposed to act with a measure of independence.
In 2004, Attorney General John Ashcroft and Deputy Attorney General James Comey — who is now the FBI director — famously refused White House efforts to get them to approve more secret surveillance by the George W. Bush administration.
A Democratic former attorney general, Eric Holder, who served in the Obama administration until last year, described Trump’s promise as evidence that the Republican nominee is “dangerous” and “unfit” to be commander-in-chief.
“He is promising to abuse the power of the office,” Holder, a vocal supporter of Clinton for president, posted online Sunday night. “Be afraid of any candidate who says he will order DOJ/FBI to act on his command.”
When President Richard Nixon ordered his attorney general to take certain actions, the attorney general “courageously resigned,” Holder said on Twitter.
Prominent Republicans did recently put pressure on Attorney General Loretta Lynch to appoint a special counsel to investigate the issues surrounding Clinton’s use of a private email server. Even before the FBI concluded its investigation of the matter, these Republicans said a special counsel was needed because of potential conflicts of interest for the Justice Department in handling the issue.
Mukasey said a special prosecutor would likely be necessary if federal authorities in the next administration decide to reexamine Clinton’s handling of classified information on her private email server.
Because officials in the Justice Department and FBI participated in the initial investigation and in the decision not to bring charges, if the case is reopened for some reason “a special counsel would be warranted,” Mukasey said.
During Sunday night’s debate, Trump insisted that many FBI agents are “furious” with how investigators and prosecutors handled the Clinton matter.
“So we’re going to get a special prosecutor, and we’re going to look into it,” he said.
But if a President Trump wanted a special prosecutor, he would have to request it and the attorney general would have to approve.
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