William C. Banks Included in Law.com’s Review of the Special Counsel Appointment

The school year is already over at many law campuses across the country, but plenty of legal academics are staying busy helping the media and public decode Robert Mueller’s appointment last week as special counsel. Mueller is tasked with investigating President Donald Trump’s alleged ties to Russia, that country’s interference in the 2016 election, and Trump’s dismissal of James Comey as director of the Federal Bureau of Investigation.

News outlets large and small have called on law professors to explain the history and role of special prosecutors, the challenges and limitations they face, and to forecast what it all might mean for the future of the Trump presidency. Here’s a sampling of what they’ve had to say.

Is Mueller good news or bad news for Trump?

“Nobody can point me to a statute that would be violated. And a prosecutor is only allowed to look for evidence of a federal crime. And the reason I think Trump may benefit from this is this will be a secret proceeding. Mueller is a very honorable guy, so he’s not going to leak anything. And in the end, he’s going to find no crime.”

—Alan Dershowitz, professor emeritus at Harvard Law School, speaking on Fox News.

“I think it in one sense it is bad news for Trump and it is good news for people who want a robust investigation because Mueller is definitely a straight shooter and he has a good reputation as an FBI director. It means that the investigation goes on. It is not going to be stopped and it also means that the deputy attorney general doesn’t want to do Trump’s bidding on this.”

—Jens David Ohlin, a professor at Cornell Law School, on CNN.com.

A historical look at special counsel, and its limitations

“So we have a long history of appointing these counsels in the hope that they’re going to get to the bottom of something. What we end up doing is maybe someone lies to investigators—and you shouldn’t lie to investigators, and that’s fine. They may be punished. But for the underlying crime, we often never do find what went on or if it was a crime at all.”

—Stephen Carter, a professor at Yale Law School on NPR’s Weekend edition.

“Appointing special counsel Robert Mueller to probe Russian meddling in the 2016 election (and any possible ties to President Trump’s campaign) was the only choice the Justice Department had. … But it’s also a highly imperfect solution, because it doesn’t foreclose the possibility of political interference in the investigation. The rules provide only so much protection: Congress, Trump and the Justice Department still have the power to stymie (or even terminate) Mueller’s inquiry.”

—Neal Katyal, Hogan Lovells partner and professor at Georgetown University Law Center in a Washington Post op-ed.

 “No one’s going to jail as a result of what the commission does but they could with a prosecutor. Congress has the power to investigate but power to prosecute is in the Executive Branch.”

—William C. Banks, a professor at Syracuse University College of Law in Time.com … 

To read the whole article, click here.

 

Need to Know: David M. Crane Explains Security Clearances & Classification with Spectrum

Security Gaffes in the White House Cause Intelligence Expert Grave Concern

(Spectrum | May 22, 2017) This is a special edition of SPECTRUM featuring intelligence expert, David Crane. The way President Trump is dismissive of “intelligence briefings” and makes disclosure decisions without prior consultation with intelligence experts causes grave concern to a long time security veteran.

Recently, the news has focused on security gaffes in the White House. Some reports have said that President Trump gave the Russians intelligence information that was classified at the highest level of secrecy.

It is reported, by Trump’s National Security Advisor, that he made the decision to do so “on-the-spot” without any prior consultation with his security team. His National Security Advisor H.R. McMaster said at a press briefing that before making the disclosures, the President did not know the source of the information or from where the information came.

Although McMaster claims the President’s disclosures to the Russians were “wholly appropriate,” many experts question the wisdom of such spur-of-the moment Presidential decisions to share highly secretive information without consulting with the security team first.

To understand exactly what happened and what the “intelligence terminology” we hear means, we’ve called in an expert — David Crane.

Crane spent over three decades in top-level Intelligence work for the government. He helped create and was the founding director of the Office of Intelligence Review in the Department of Defense. He is an international law specialist and has acted as a prosecutor of war crimes for the United Nations.

Crane is very concerned about how this Administration is handling intelligence and what the dire ramifications could be. He is troubled by the President’s seemingly casual attitude about “intelligence” and his dismissive policies toward “briefings” by veteran intelligence officers. He also describes how the President’s mishandling of critical information can put other countries and individuals in jeopardy as well as the United States.

http://www.npr.org/podcasts/486931216/spectrum

Explaining the Special Counsel: William C. Banks Speaks to Factcheck.org

Special Counsel Q&A

(Factcheck.org | May 19, 2017) On May 17, the Justice Department announced the appointment of former FBI Director Robert S. Mueller III as special counsel to investigate any possible collusion between the Trump campaign and the Russian government’s efforts to influence the 2016 presidential election.

Trump responded by calling the investigation a “witch hunt.”

Banks said they all have the same core function: to investigate and prosecute possible violations of criminal law by officials of the federal government.

At a May 18 press conference, Trump said: “Well, I respect the move, but the entire thing has been a witch hunt. And there is no collusion between certainly myself and my campaign — but I can always speak for myself — and the Russians, zero.”

Deputy Attorney General Rod Rosenstein made the decision to appoint a special counsel just days after Trump fired FBI Director James Comey. Comey told Congress on March 20 that the FBI had opened an investigation last July into “the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”

Amid ongoing investigations by the FBI and House and Senate intelligence committees, what exactly does the appointment of a special counsel mean? Here we answer some questions that readers may have.

Who appoints a special counsel?

The appointment of a special counsel typically is the decision of the U.S. attorney general. But in this case, Attorney General Jeff Sessions recused himself from the Russia inquiry after it was revealed that he had met twice with Russian Ambassador Sergey Kislyak during the presidential campaign and did not disclose the meetings during his Senate confirmation hearing. In such cases of recusal, the power to appoint a special counsel falls to the “acting attorney general,” in this case, Deputy Attorney General Rod Rosenstein. According to the Code of Federal Regulations, a special counsel is appointed for an investigation into a matter that “would present a conflict of interest for the Department [of Justice] or other extraordinary circumstances” or in cases when it “would be in the public interest” to have an outside counsel …

… Can Mueller be fired?

Yes, but not by the president, at least not directly. Only the acting attorney general — in this case, Rosenstein — can discipline or fire a special counsel, and then only for cause. According to the federal code, “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.” The president can, however, fire the deputy attorney general.

What authority does a special counsel have?

A special counsel has the same authority as any federal prosecutor, William Banks, a professor and the founding director of the Institute for National Security and Counterterrorism at Syracuse University, told us in a phone interview. That includes access to classified documents. It also includes the authority — if deemed appropriate — to subpoena, say, the president’s tax records …

… How common is the appointment of a special counsel?

According to the Lawfare blog, this is only the second time a “special counsel” has been appointed under this specific regulation. The first was in 1999 when Attorney General Janet Reno appointed former Sen. John Danforth to lead an investigation into the federal law enforcement raid of the Branch Davidian compound in Waco, Texas. But as Lawfare explained, past attorneys general have used “different authorities to appoint other special counsels — like Nora Dannehy, appointed in 2008 to investigate the firing of U.S. Attorneys, Patrick Fitzgerald, tasked with leading the investigation into the Valerie Plame affair, and John Durham, who investigated the alleged abuse of suspected terrorists by CIA interrogators.” Those are wholly different from “independent counsels” such as Kenneth Starr, who investigated the Whitewater scandal during Bill Clinton’s presidency. Starr’s investigations were carried out under the Ethics in Government Act, which was enacted in 1978 after the Watergate scandal. But that law expired in 1999.

Lawfare and a Congressional Research Service report go into some detail about the differences between the variations of special counsels, independent counsels and special prosecutors over the years. But Banks said they all have the same core function: to investigate and prosecute possible violations of criminal law by officials of the federal government. And they have been all too common in American history.

To read the full article, click below:

Special Counsel Q&A

Tremendous Integrity: William C. Banks Discusses Robert Mueller’s Appointment with Bloomberg

Robert Mueller Garners Bipartisan Support in New Role

Former Massachusetts Governor and principal and ML Strategies William Weld and William Banks, director of the Institute for National Security and Counterterrorism at Syracuse Law School, discuss the selection of Robert Mueller to lead the Justice Department investigation into Russian interference in the U.S. Presidential election. They speak June Grasso and Greg Stohr on Bloomberg Radio’s “Bloomberg Law.”

https://www.bloomberg.com/news/audio/2017-05-18/robert-mueller-garners-bipartisan-support-in-new-role-audio

Detailed Record: Syria Deeply Interviews David M. Crane

Collecting Evidence of War Crimes in Syria

(Syria Deeply | May 18, 2017) The Syrian Accountability Project (SAP) at Syracuse University doesn’t know about weekends. “It’s a seven-day-a-week operation,” says project leader and law professor David Crane. The SAP team updates its extensive database constantly and provides quarterly reports to its clients, “which are the United Nations, the [U.S.] Office of the Legal Advisor, the Chief Prosecutor of the International Criminal Court, the High Commissioner for Human Rights, as well as various countries,” he says.

Since 2011 the SAP has been documenting war crimes and crimes against humanity in Syria. “It’s a neutral effort. We’re not looking at one side or the other, we’re building a trial package against anyone who commits war crimes and crimes against humanity,” says Crane. The trial package is for domestic or international prosecutors in the future who decide to bring a case to court.

Crane is confident that it will happen, it might just take a little longer. He’s got experience.

As founding Chief Prosecutor of the Special Court for Sierra Leone, Crane helped to send Charles Taylor to prison. He created SAP as an organization using “the tried and proven techniques of what we did in West Africa and apply them to the Syrian civil war.”

Syria Deeply spoke with Crane about SAP’s latest research on Aleppo, its techniques and quality control and his viewpoint on the chances of prosecuting war crimes in the context of the Syrian crisis

Syria Deeply: In your latest report “Covered in Dust, Veiled by Shadow: The Siege and Destruction of Aleppo” you provide a historical narrative of the city, going as far back as the 3rd millennium B.C. to when it was known as Ha-lam. Why did you decide to look back so far?

David M. Crane: Like all white papers these are information assets for people who know nothing about Aleppo to people who are deeply involved and everything in between. The purpose is to inform, for example, a policymaker, a diplomat or someone who is in the international criminal business and to allow someone who is not informed at all to read through the white paper and have a basic overview – a four corners overview – of what took place in Aleppo over the past six, seven months. We wanted to also give the important historical context of Aleppo and the tragedy of the destruction of this ancient city.

Syria Deeply: What methodology and tools did you and your team use?

Crane: We work with researchers, investigators and criminal information analysts. We used the same techniques, the same analysis and data collection that we had been using for well over six years, and that is through various sources. We have an incredible amount of data at our fingertips.

We have what we call open source material, which is data that is currently available on the web, social media and what have you. We also have what we call walk-in information; in other words, we received on a regular basis individuals who report to us incidents and situations they want to bring to our attention. Then we have our clandestine methodologies; we’ve been developing an information network within Syria that is reporting to us through clandestine means.

We use this data to build a trial package or, if we have a particular incident that needs international attention and assertion, to create white papers. We did one for the chemical attack [in Khan Sheikhoun]. We had a white paper out within 14 days after the chemical attack

To read the whole article, click here.

 

David M. Crane Discusses His Intelligence Law & International Law Career With Spectrum

Syrian War Crime Cases Prepped by US Attorney David Crane

(Spectrum (WOUB Public Media) | May 17, 2017) World-renowned international lawyer and national security expert David Crane is heading the Syria Accountability Project to hold Syrian governmental and faction leaders accountable for thousands of verified war crimes.

He and his group are building war crime cases and trial packages against Syrian government and faction leaders. To date, Crane’s group has verified over 8,000 pages of individual war crimes.

Crane is building conflict maps and criminal law matrix to help international, national and local prosecutors in Syria try and convict war criminals. He also has compiled a massive data base and incident index. He even has prepared model indictments against named Syrian leaders.

Crane brings a wealth of experience to this effort. He was the lead prosecutor in war crimes trials for the United Nations against Sierra Leone and other leadership in the 1.2 million massacre of its citizens in that 11 year civil war. His work resulted in the conviction and imprisonment of Charles Taylor, the former president of Liberia. This was only the second time in history that a former head of state was convicted of war crimes.

He also helped create and was the founding director of the Office of Intelligence Review in the Department of Defense.

Throughout his illustrious career, Crane has been able to apply the rule of law to chaotic situations whether they are foreign or domestic.

Domestically, he is a firm believer that the U.S. Constitution guides everything. He cites that statutes, regulations and policies may come and go but the Constitution is always present with strong guiding principles to follow.

Crane is currently a Professor of Practice at the Syracuse University College of Law. He also is a member of the faculty of the Institute for National Security and Counterterrorism at Syracuse University.

https://woub.org/2017/05/17/syrian-war-crime-cases-prepped-by-us-attorney-david-crane/

What Is Obstruction of Justice? William C. Banks Helps Time With an Explainer

What Is Obstruction of Justice?

(Time | May 16, 2017) The term “obstruction of justice” has been swirling inside Washington D.C. and across cable television ever since President Donald Trump fired FBI Director James Comey last week. The talk only intensified after the New York Times cited a memo from Comey claiming Trump had asked him to shut down an investigation into former National Security Adviser Michael Flynn following his resignation.

“Lots of chatter from Ds and Rs about the exact definition of ‘obstruction of justice,'” Senator Chris Murphy tweeted Tuesday with a link to the Times report.

“Yesterday, secrets to the Russians. Today, obstruction of justice? When does this end?” Senator Sheldon Whitehouse tweeted.

But what exactly is obstruction of Justice and how does it relate to the headlines that have been coming out of the Beltway?

Obstruction of Justice is essentially someone who intentionally intervenes or tampers with an ongoing investigation.

“You can’t get in the way or do anything to impede an investigation that has already been launched and if you do you may suffer criminal penalties,” said William C. Banks, a law professor and Director of the Institute for National Security and Counterterrorism at Syracuse University …

Read the full article here.

 

Assad’s Crematoriums: David M. Crane Discusses New Syrian Atrocities With TRT World

INSCT Faculty Member David M. Crane speaks to Turkey’s TRT World about allegations that Syrian President Bashar Assad has built a crematorium near Saydnaya Military Prison, believed to be a new way to slaughter enemies of the regime and to cover up the extent of illegal treatment of political prisoners. The allegations come from the US Department of State, which has released declassified satellite images showing the crematorium standing on land that was un-built in a comparable photo taken in 2013.

William C. Banks Speaks to Media After the Firing of FBI Director James Comey

In the wake of the firing of FBI Director James Comey on May 9, 2017—at a time when this agency and others are probing the influence of Russian intelligence in the 2016 presidential election—INSCT Director William C. Banks’ knowledge of constitutional and national security law was in high demand by the media …

Washington Journal for May 12, 2017 (C-Span | Washington, DC)

Candidate for FBI Post May Not Be Qualified (US News & World Report | May 11, 2017)

… Some scholars, though, say the text of the statute concerning acting appointments could be seen to apply to the office a person holds, not whether the person himself was confirmed – meaning that Evanina would still be qualified to be appointed acting director.

“That’s right. I think it does meet the statute,” says attorney William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University, whose study includes constitutional law. “Because of the terms of this statute, he doesn’t have to be confirmed for the interim position” …

What’s next after the firing of James Comey? (WWL New Orleans | May 11, 2017)
Why a thorough investigation of Russian election meddling is still possible (Christian Science Monitor | May 10, 2017)

… In the current charged political environment, a national commission might be the only path to a new approach acceptable to both parties.

“Trump couldn’t stand in the way of that” if Congress moves in that direction, says William Banks of Syracuse University.

The problem here is that congressional investigations already exist. The probe overseen by the House Select Committee on Intelligence is currently a tangled mess, given the move by chairman Rep. Devin Nunes (R) of California to secretly visit the White House to view documents he said might help prove Trump’s accusation that he was wiretapped by President Obama during the campaign …

President Trump and Russia: How would a special prosecutor get appointed? (USA Today | May 10, 2017)

… During his confirmation hearings for the No. 2 post at the Department of Justice, Rosenstein refused to commit to Democrats’ calls for a special prosecutor to oversee the inquiry.

Syracuse University law professor William Banks said it’s unrealistic to expect action from Rosenstein. “Even if the deputy wanted to do this, he would be shot down by the White House, I imagine,” Banks said …

James Comey’s Firing Has People Calling for an Independent Prosecutor. What’s That? (Time | May 10, 2017)

… A commission, a committee, and a special prosecutor would all be charged with investigating Russia’s meddling in the 2016 election, or specifically, possible collusion between Trump campaign associates and Russia. But only a special prosecutor has the power to actually take legal action; a committee or a commission would only gather the facts and present the findings to the Department of Justice.

“No one’s going to jail as a result of what the commission does but they could with a prosecutor,” explained William C. Banks, a law professor and Director of the Institute for National Security and Counterterrorism at Syracuse University. “Congress has the power to investigate but power to prosecute is in the Executive Branch” …