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Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Clement and His Options
July 26, 2007 8:16 PM
Four Senate Democrats today demanded the appointment of a Special Prosecutor to investigate Attorney General Alberto Gonzales for perjury, putting the spotlight on Solicitor General Paul Clement. A highly regarded solicitor general who's widely respected by the Justices and his peers in the Supreme Court bar (a pretty tough group to impress) for his first-rate advocacy, Clement is the most high-ranking official in the Justice Department not involved in the controversy.
He's therefore the one who will make the call. And in the wake of today's demands, he is, at the very least, likely to open an internal DOJ investigation into whether Gonzales’ committed perjury when testifying on the Hill.
That internal investigation would help guide his decision on whether to name a Special Prosecutor. But federal regulations, which were codified in 2003, give him almost absolute discretion to make the decision. Here's a quick overview.
The regulations replace the Independent Counsel Act, which Congress let lapse after Ken Starr’s investigation of President Clinton. They provide no deadline, and they specifically outline other alternatives short of a special prosecutor, including tapping DOJ career attorneys to handle the investigation.
According to the regulations, the Attorney General (here, the next-ranking official, Clement) can authorize a special counsel when he
“determines that criminal investigation of a person or matter is warranted” and that
a) prosecuting it internally would present a “conflict of interest for the Department or other extraordinary circumstances;
b) it would be in the “public interest to appoint an outside Special Counsel” to assume responsibility.
The regulations also include “alternatives available” to the Clement, such as starting the investigation with career DOJ staff.
Here are Clement’s options, now that the matter has been brought to his attention. He may:
(a) Appoint a Special Counsel;
(b) Start an initial investigation “consisting of such factual inquiry or legal research as (he) deems appropriate” in order to help make the decision; or
(c) Reject the request by concluding that “the public interest would not be served by removing the investigation from the normal processes of the Department,” and that DOJ should handle the matter. In that situation, Clement can take “appropriate steps” to “mitigate any conflicts of interest, such as recusal of particular officials.”
Sources who helped write the regulations say Clement does not have to respond to the Democrats’ request formally or publicly. But one said that Senate Democrats ultimately could call him to testify on why he’s not appointing one, if he goes that route.
Regardless, this much seems clear: it's likely to be some time before we hear what Clement decides, since he must first marshall the facts.
July 26, 2007 | Permalink | User Comments (9)
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That was very helpful and interesting. Thank you.
Imagine what an embarrassment Gonzales would be if Bush had put him onto the Supreme Court like he wanted to, in the seat that went to Roberts. Chief Justice Alberto Gonzales? Good grief.
Posted by: Joe | Jul 26, 2007 8:33:44 PM
That is the problem with you liberal democacrats. You think that no one is above the law.
Posted by: Tammy Stickers | Jul 30, 2007 9:44:13 AM
If the recent DOJ congressional testimony is any indication, I'd be extremely surprised if it was determined that a special counsel would serve the "public interest."
Seems that all of Bush's appointees that we've seen so far hold a very narrow definition of what "public" they're serving, and exactly whose interest they're required to protect, with some even forgetting what they've sworn to uphold (it's the constitution, not the president).
Then of course we can all watch Clement on C-Span as he "forgets" why he didn't appoint a special counsel to investigate his boss.
Posted by: JR | Jul 31, 2007 1:28:27 PM
Sure was good to see the Chief Justice walk out of that hospital with a smile and a wave.
Posted by: Joe | Aug 1, 2007 2:49:00 PM
Tammy Stickers is right. That's the problem with all the liberal Democrats today. Don't they know that if you're a Republican and in the executive branch, the law doesn't apply to you? That was true in the Nixon administration, and it's true now.
Posted by: anonymous cat | Aug 1, 2007 4:59:51 PM
American laws don't apply to Republicans. They only apply to real Americans.
Posted by: Tammy stickers | Aug 2, 2007 10:57:21 AM
It's unsettling to see how our country is plagued with scandal that impedes us from solving true issues involving our country.
Our inability to maintain our country internally has shown in our involvement in the Middle East, which we have financed over 340 billion dollars [Borgen Project]. The better altnernative would've been to fight Global Poverty, that involves the entire world and could be the one chance the United States has to redeem itself to the rest of the world.
Posted by: Erica | Aug 8, 2007 1:06:13 PM
I hope Paul Clement doesn't get caught up in the AG turmoil, at least not caught up in it to the point of destroying his chances to be nominated to the Supreme Court.
He's my first choice to be nominated to the Court, though I realize the next nominee will be a woman.
I've read a few people's speculation (Scotusblog for one) that Clement will stay on as "acting" AG all through the remainder of the Bush Presidency -- mainly to avoid having a contentious confirmation battle, for him or for anyone. I'm worried that could alienate some democrats who might later hold it against him if he was nominated to the Court under a future President. But maybe if things go well for him as AG over the rest of the term, then that could work in his favor later.
Well, who knows? It's just fun speculating a little about Clement getting a Supreme Court nomination.
Posted by: Joe | Aug 28, 2007 6:43:15 PM
Remember when Jan used to actually update her blog?
Those were fun times.
Posted by: Joey | Aug 29, 2007 4:15:07 PM
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