Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. Read more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
President Donald Trump’s latest object of fascination, it seems, is the potential appointment of a special counsel to turn his assorted political obsessions into criminal investigations. CNN reported that Trump has discussed the possibility of appointing lawyer Sidney Powell as special counsel to investigate voter fraud allegations – yes, the very same allegations that have repeatedly been repudiated by courts across the country, by Trump’s own loyal attorney general and by the FBI and the Department of Homeland Security (to name a few).
First things first: Appointing Powell as special counsel, or to any governmental post with any authority whatsoever, would be wildly irresponsible and outright dangerous. Powell once served as a federal prosecutor, but now she appears to be completely off the rails. She recently has openly espoused wild, dangerous conspiracy theories, and has filed a series of ridiculous lawsuits that have been roundly rejected by courts.
Anyone considering such a move must misunderstand the law. Under the special counsel regulations, only the attorney general – not the president – can appoint a special counsel. There is an argument that the president, as head of the executive branch, can order the attorney general to make an appointment. But that’s legally debatable at best and would lead to damaging politicization of the Justice Department.
Further, the regulations permit appointment of a special counsel only when “a criminal investigation of a matter or person is warranted” and the matter presents a conflict of interest for the Justice Department, or “other extraordinary circumstances.” Trump’s thoroughly debunked claims of widespread voter fraud meet none of those criteria.
The regulations require that a special counsel “shall be selected from outside the United States Government.” This requirement would not disqualify Powell, who no longer works for the government. But the regulations also require that special counsel must be “a lawyer with a reputation for integrity and impartial decision making.” Given Powell’s recent endorsements of provably false theories about election fraud, and her overt political cheerleading for Trump, she appears to fall short on these requirements.
If named special counsel, Powell would hold formidable power that she is simply unfit to exercise. First, a special counsel holds essentially all the power of a US attorney – including the power to issue subpoenas, obtain search warrants and bring federal criminal charges. The notion of giving Powell this kind of authority, given her recent conduct, is alarming.
In some respects, a special counsel holds even more power than a typical US attorney. A special counsel has broad power under the regulations to “determine whether and to what extent to inform or consult with the Attorney General” about an investigation.
If the attorney general overrules the special counsel on any issue, the attorney general must report that disagreement to Congress. And the special counsel must file a written report with the attorney general, which then may become public, at the end of the investigation.
Bottom line: A presidential appointment of Powell as special counsel likely would be illegal, and almost certainly would be dangerous. If Trump, outgoing Attorney General Bill Barr or his successor actually follows through with this wild plan, the incoming Biden administration would be well-founded in putting a quick end to this improper abuse of power.
Now, your questions:
David (California): Can a presidential pardon be revoked by the next president?
Probably not. The constitutional pardon power is broad: The president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The Constitution makes no mention of any power to revoke a pardon.
A president might, in certain narrow circumstances, be able to reverse his own pardon before it becomes official. In 2008, President George W. Bush pardoned convicted felon Isaac Toussie but then, upon learning that Toussie’s father had made large donations to Republican political groups, rescinded the pardon the very next day. Administration officials claimed the pardon had not yet been finalized because Toussie had not yet received formal notice of the pardon.
There is only limited and distant precedent for a president to revoke a prior president’s pardon. President Ulysses S. Grant revoked several pardons issued by his predecessor, in some instances claiming (like Bush) the pardons were not final because no formal notice had been made to the recipients. In the 150-plus years since Grant, no president has even attempted to rescind a pardon issued by a prior president.
Brenda (Switzerland): Is there any way the length of the presidential transition period can be changed?
It can happen, but it’s very unlikely. The presidential transition period runs from Election Day until Inauguration Day. The Constitution gives Congress the power to set a uniform nationwide election date, and Congress exercised that power back in 1845 by passing a law setting the date as the Tuesday after the first Monday in November. Congress could change that date by passing a new law, which of course would require majority votes in the House and Senate, plus the president’s signature. At the moment, there is no particular political movement to change the election date.
The 20th Amendment to the Constitution specifically sets the inauguration of the newly-elected president for noon on January 20. It therefore would require a constitutional amendment to change that date; such an amendment requires approval from two-thirds of the Senate and two-thirds of the House of Representatives, and ratification by three-fourths of all states (38 of the 50 states). (There are other even more complex ways to amend the Constitution as well).
Again, there does not seem to be anywhere near enough political momentum for such a change.
Robert (Missouri): Does the law allow customers or employees to sue a business if they were infected with Covid while at that business?
This exact question has become a sticking point in congressional negotiations over a Covid relief bill. Generally, Republicans in Congress favor laws giving immunity to businesses and other entities, making it difficult or impossible for people who were infected with Covid to sue for damages. The policy goal is to prevent an onslaught of costly lawsuits against businesses that already may be struggling for survival.
Democrats, on the other hand, generally oppose immunity. They argue there must be accountability for businesses if their negligence causes Covid infections, and people who are so infected should have the right to sue for damages.
There are available mid-points for compromise. For example, the law could require plaintiffs to make a higher showing than normal – gross negligence rather than negligence, for example – which would reduce but not eliminate lawsuits. But it appears Congress may simply punt on the issue, leaving it out of the current bill and delaying the debate for some later time.