The Special Counsel Is Dead. Long Live The Special Counsel.

Last week, predicted that the next phase in Trump litigation will involve contempt proceedings:

The third phase, I predict, will be hostile contempt proceedings where district court judges try to reassert their authority over the executive branch, even in the face of SCOTUS reversals. We may not have a special counsel like Robert Mueller to launch inquisitions against the Trump Administration, but district court judges in D.C. and Maryland will gladly assume that role. Soon enough, we will be talking about “obstruction of justice” all over again. We might spend the next four years inquiring about what Trump knew about the airplanes. This very well might form the basis of future articles of impeachment. It is 2017 all over again.

And so it has come to pass. Judge Boasberg found that the Trump Administration likely engaged in criminal contempt. There will be a hearing that will likely make the judge even more angry. And he will find that criminal contempt is appropriate.

Federal Rule of Criminal Procedure 42(c)(2) provides:

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

The United States Attorney for the District of Columbia will not prosecute the case, and may ultimately become a fact witness. So Judge Boabserg will anoint a new special prosecutor to investigate the Trump Administration. I hear Jack Smith has some free time on his hands?

We are back in the first Trump Administration with Robert Mueller. Anything that Trump or anyone else does will be considered “obstruction” which could trigger further indictments. The special prosecutor will try to interview the President himself. But unlike with Mueller, Trump would have no power to effect the removal of the special prosecutor. This will become the basis of some future impeachment hearing.

I agree with Justice Gorsuch in the Donziger case. The court appointed special prosecutor violates the separation of powers. Get ready for more “officer stuff”!

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