The Last USA: Dana Boente Is the Best Short Term Solution

In the wake of the Comey firing, particularly given the way Deputy Attorney General Rod Rosenstein let himself serve as a pawn, many people have renewed their call for “a special prosecutor.” In the short term, however, I believe Dana Boente — that is, the status quo — is a better solution.

As a reminder, Dana Boente is the US Attorney of Eastern District of VA. With Rosenstein’s confirmation as DAG, Boente is the last remaining confirmed US Attorney in the United States. Boente’s office is overseeing at least two parts of the Russian investigation: the generalized investigation into Wikileaks, and the investigation into Trump’s campaign. The latter investigation recently issued subpoenas to Mike Flynn associates. There are reportedly parts of the investigation in three other places: some work being done in Main Justice, as well a a team investigating Guccifer 2.0/Shadow Brokers in San Francisco, and a team investigating the Russian hackers in Pittsburgh.

But the bulk of what people think of as “the Russian investigation” — the investigation into Trump’s cronies — is happening in EDVA, overseen by The Last USA.

In addition to reporting up to Rosenstein as DAG and Rosenstein as Acting AG for the Russian investigation, Boente just took over as Acting Assistant Attorney General for National Security Division — the office that reviews things like FISA orders. That means Boente — for better and worse — has more authority, on several levels, than a “Special Counsel” would have.

First, note I use the term “Special Counsel,” not “Special Prosecutor.” Ken Starr was a Special Prosecutor, but in the wake of his fiasco and given persistent questions about the constitutionality of having someone who was totally independent from the structure of DOJ prosecuting people, Congress got rid of the provision supporting Special Prosecutors.

So if Rod Rosenstein wanted to appoint someone “independent” to oversee the Russian investigation, he’d have to use the Special Counsel provision.

While I think it is permissible to hire someone from outside of DOJ to do that job (so it is possible he could call up corporate lawyer Pat Fitzgerald for his third ride on the Special Counsel merry-go-round to, in dramatic fashion, save the investigation undercut by the firing of his good friend Jim Comey), in practice the recent Special Counsel appointments (the UndieBomb 2.0 leak investigation, the StuxNet leak investigation, the John Kiriakou prosecution, the Torture investigation, and the Plame investigation) have all been DOJ prosecutors, either US Attorneys (in all but one case) or an Assistant USA Attorney, in the case of John Durham’s whitewash of torture. Plus, while Fitz is still well-loved at DOJ and FBI as far as I know, if Rosenstein appointed him, I bet Trump would fire him within minutes because he’s sure as hell not going to be “loyal.” And because of Fitz’ past gunning hard for Cheney and Bush, many Republicans might not put up much of a stink there.

If Rosenstein were to adhere to the practice of naming existing DOJ prosecutors, though, it’d mean he’d be choosing between Boente, The Last USA, or an AUSA (perhaps one of the ones who recently reported to him in MD). In both cases, the Special Counsel would report to Rosenstein for AG approvals (as Pat Fitz reported to Jim Comey for the Plame case).

You can see quickly why Boente is the preferable option. First, there’s no reason to believe he isn’t pursuing the investigation (both investigations, into Wikileaks and Trump’s associates) with real vigor. He is a hard ass prosecutor and if that’s what you want that’s what you’d get. His grand jury pool is likely to be full of people with national security backgrounds or at least a predisposition to be hawks.

But — for better and worse — Boente actually has more power than a Special Counsel would have (and more power than Fitz had for the Plame investigation), because he is also in charge of NSD, doing things like approving FISA orders on suspected Russian agents. I think there are problems with that, particularly in the case of a possible Wikileaks prosecution. But if you want concentrated power, Boente is a better option than any AUSA. With the added benefit that he’s The Last USA, which commands some real respect.

Sure. If next week Trump calls Boente to dinner and demands his loyalty on threat of firing, this may change. But the same logic that people are using with a Special Counsel (that if Trump fired that person, maybe then Republicans in Congress would want something more independent) holds for Boente. Firing The Last USA ought to be as incendiary as firing an AUSA, assuming anything will be.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

22 replies
  1. Peterr says:

    *phone rings*

    *Dana Boente looks at the screen*

    Dana: No number? Hmmm . . . *taps the phone’s face* Hello?

    WH operator: This is the WH switchboard. Please hold for the President of the United States, Donald J. Trump.

    Dana (with a WTF look on his face): OK.

    Trump: Dana, how are you doing?

    Dana: I’m doing . . .

    Trump (rushing on over Dana’s reply): Yeah, great. Look, you’re my only senate-approved US Attorney right now, and it just occurred to me that I haven’t had you to dinner yet, so that you can see the White House and Oval Office. I’ll send a car for you around 6:30, and we’ll fix that little omission.

    Dana: Uh, Mr. President, I . . . I . . . I already have plans this evening.

    Trump: Plans more important that dining with the greatest President that ever sat in the Oval Office? I don’t think so. 6:30.

    Dana: Uh, I don’t think that’s a good idea.

    Trump: It’s a great idea. My driver will be out front at 6:30.

    Dana: Uh, no.

    Trump: No? What do you mean no? You don’t think my driver will be on time?

    Dana: No, I don’t think we should have dinner.

    Trump: What?!? I’m the president of the United States, and you work for me. We ARE going to have dinner. Be ready at 6:30.

    Dana: No, we’re not. Goodbye, Mr. President.

    *phone goes dead*

    Trump: He hung up on me! That &#^%@ hung up on the &$^# President of the &@(%@# United #^%%^ States! Nobody hangs up on the President!!!

    *Trump pulls up his Twitter account . . . *

     

     

  2. Charles says:

    Marcy, this is a good great suggestion. I think Ben Wittes’ suggestion to Rosenstein that he appoint a Special Counsel (he calls him a special prosecutor, no caps) and then resign would work here.

     

    It would allow Rosenstein to say that he followed orders until those orders went outside the lines of normal practice at DoJ, and then gave the appropriate parties the finger. It might back Trump off the Russia investigation long enough for it to produce something.  It might ensure that McCabe walks the straight and narrow.

     

    I hope Boente has got a backbone. The Rosenstein tale makes it clear that Trump can very quickly corrupt even decent people.

    • Avattoir says:

      Comey ‘stepped down’ from voter registration & voting itself, for appearances; but he’s still R. Rosenstein is so R, he’s typically labeled “rock-ribbed”. Boente’s last promotion, into USa, was by Obama, but still: the only R exception: R.

      There seems this weird idea that those 3 are somehow amenable, nay eager, to join La Resistance. I don’t get that. I get that all members of that type get used & abused b/c Rs eat their own. I get that all members of that type are one with R military brass, all self-absorbed mini-MacArthurs trolling the Beltway media, especially natsec media insiders, matryrs to the cause to the manner bred, raised to get stuck & looking forward to showing off the spear wound.

      Note: now Comey’s resiling from any timely public appearance particularly before a Congressional committee; and Rosenstein’s backed off the supposed Miracle of Resignation Threat. For all the convenient narratives about reluctance to sup at the king’s board & serve as tools to imperial whim, both still hoicked over there, right?

      And there’s really no basis for imagining Boente would prove some exception to that path; after all, Dubya put him up for a federal circuit gig, so his name’s on the list of the pre-blessed.

      Also, I’m not sure how we granted all 3 ‘court hero’ status when, from all I’ve seen & heard, all 3 made their bones as hard-ass ruthless line prosecutors who typically worked with overwhelming resources to ‘earn’ splashy wins in slam dunk cases in front of pre-convinced forums.

      ‘Caving’ means something quite different to them than it means to the type who comment here.

      • bmaz says:

        Come on my friend: You can NOT spell security without an “R”. There is no “D”, irrespective of how many times the “R”‘s send us down the rabbit hole.

        • Avattoir says:

          That’s not unfair: there’s a D glass ceiling. And it’s partly if not materially self-imposed, in that a lot of D types sabbatical out from prosecution into NFP programs dedicated to overcoming ills endemic to the process, for AOTs perspective; whereas R types are lifers, with the inhumanly hardened heads that reflect that.

          And all that doesn’t even get to Capitol & HQ politics.

      • Charles says:

        I have very few heroes, and mine are the kind that go to jail or die for their beliefs.So, I have no illusions about any of these people.   But there’s no one more sanctimonious or determined in prosecuting Republican misdeeds than a Republican convinced he’s saving the Party from traitors.

  3. bmaz says:

    Think there is a lot right here. That said, a special counsel “could” have plenty of necessary jurisdiction “if” tasked and funded to do so. Would that ever happen? Hahahaha, no. But, that creates the paradox you don’t mention which is, before letting Boente loose, why “wouldn’t” the Trumpalos consent to an appointment of a special counsel, but one with loyalty to them and substantial constraints on tasking and funding. The only reason I can think of is that they are not that smart.

    Secondly, unless my resident annoying wood/metal pecker has grown in size remarkably, that commotion I just heard is the Trump Admin rushing to appoint a new confirmed loyalist AAG NSD.

    • Peterr says:

      Trump can rush to make a nomination, but I suspect that confirmation of that person might take a while, with lots of uncomfortable questions asked along the way. I can just see Pat Leahy, Sheldon Whitehouse, and Al Franken smiling at the prospect of hearings to confirm a nominee for the National Security Division.

      “Have you ever had dinner with President Trump? . . . ”

      “Was Attorney General Eliot Richardson correct to refuse President Nixon’s order to fire Archibald Cox during the Watergate investigation, or was Robert Bork correct in firing Cox at Nixon’s request?”

      Oh, there are a lot of fun questions that could be asked. Hours of questions. Days of questions. Questions asked in public, broadcast for all to see.

      But before we even would get to all this fun, there’s one little problem. Who would accept such a nomination at the present time? I can see plenty of conservative folks saying “I’d love to work for Trump at DOJ in a post like this, but I am not sure I want to be crucified in the Senate and the media in order to get the job.”

  4. arbusto says:

    One area of investigation on Trump/Russia that doesn’t get too mention, but to me is the crux of Trumps problems in continuing as Prez, is the Sater/Trump/Russian Oligarch-Crime connection.  I think that was what Graham may have intimated in the question to Clapper  on 5/8:
    GRAHAM: General Clapper, during your investigation of all things Russia, did you ever find a situation where a trump business interest in Russia gave you concern?
    CLAPPER: Not in the course of the preparation of the intelligence communities assessment.
    GRAHAM: Since?
    CLAPPER: I’m sorry?
    GRAHAM: At all, any time?
    CLAPPER: Senator Graham I can’t comment on that because that impacts an investigation.

  5. John says:

    I’m confused. Kenneth Starr (along with Lawrence Walsh, etc.), was an Independent Counsel. As far as I’m aware “Special Counsel” and “Special Prosecutor” are both terms for the same thing, with maybe “Special Prosecutor” being more informal.

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