WASHINGTON - July 14, 2020 - WASHINGTON, D.C. (July 14, 2020) - The demand by the ACLU that the Attorney General [AG] appoint an independent special counsel to "investigate any federal criminal violations of protesters' constitutional rights in Lafayette Square Park on June 1, 2020" including alleged violations by AG William Barr, has a solid legal foundation, says public interest law professor John Banzhaf, who has been involved with the appointment of several special prosecutors (under various different titles).

Although perhaps best known for seeking a special prosecutor to investigate the Watergate incident - a request which was never granted, but which helped lead to the appointment of two Watergate special prosecutors, and for obtaining a court order requiring the then Attorney General to seek an independent counsel to investigate the Debategate incident - he more recently prepared and circulated a legal demand for such an appointment just before Robert Mueller was tapped for that position.

Banzhaf noted that 28 CFR 600.1 requires the appointment if three conditions are met, as they are here.

Here, since the letter does set forth numerous non-frivolous allegations of constitutional as well as criminal violations, and the AG - who has admitted to having some involvement with the Lafayette Park incident - is specifically named in the allegations, it seems that the requirements of the regulation - (1) an investigation is warranted, (2) there's a conflict of interest, and (3) the public interest would be served - are satisfied, and the AG or AAG is therefore required by law to appoint an independent special counsel, says Banzhaf.

He notes here, as he did in his legal petition which preceded the appointment of Mueller, and which provides a detailed analysis of the applicable law [ banzhaf.net/mueller.pdf ], that:

"The use of the word "will" in the applicable regulation makes it clear that this regulation, and its underlying statutory basis, requires and compels the Acting Attorney General (in this case) to appoint a Special Counsel if the three conditions set forth therein are met. In this regard, the word "will" is stronger than the word 'shall' which was used in its predecessor statute, the Ethics in Government Act (Ethics Act), 28 U.S.C. §§ 591 et seq."

Here, without taking any position on the validity of the allegations made by the ACLU, the case for an appointment of an independent counsel to avoid a conflict of interest is even more compelling because it is the AG himself, and not others within the current administration involved in the park incident, who is accused of unconstitutional criminal conduct, suggests Banzhaf.

http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf

Contact
GW LAW